DICK AND JANE SEEKING JUSTICE IN THE NEW FRONTIER · VALPARAISO UNIVERSITY LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES DECEMBER 2012 (Draft) Persons Who Are Not the People: The

VALPARAISO UNIVERSITY LAW SCHOOL

LEGAL STUDIES RESEARCH PAPER SERIES

DECEMBER 2012

(Draft) Persons Who Are Not the People: The Changing

Rights of Immigrants in the United States

forthcoming, COLUM. HUM. RTS. L. REV.

Geoffrey Heeren

This article can be downloaded from http://ssrn.com/abstract=2191651

DRAFT—Please do not cite or quote without permission.

1

PERSONS WHO ARE NOT THE PEOPLE:

THE CHANGING RIGHTS OF IMMIGRANTS

IN THE UNITED STATES

Geoffrey Heeren

Abstract

Non-citizens have fared best in recent Supreme Court cases by

piggybacking on federal rights when the actions of states are at

issue, or by criticizing agency rationality when federal action is at

issue. These two themes—federalism and agency skepticism—have

proven in recent years to be more effective litigation frameworks

than some individual rights-based theories like equal protection.

This marks a substantial shift from the Burger Court era, when

similar cases were more likely to be litigated and won on equal

protection than on preemption or Administrative Procedure Act

theories. This Article describes this shift, considers the reasons for

it, and makes a normative argument that the change is a cause for

concern. To make this claim, the Article sets out a theoretical

framework of rights of personhood and membership, offers a

history of immigrant rights, and suggests that the shift away from

equal protection as a mode of analysis might reflect a decreased

willingness to recognize non-citizens as members of civil society.

The Article critiques this shift as inconsistent with democratic

values.

TABLE OF CONTENTS

INTRODUCTION ...................................................................................

I. A SHORT HISTORY OF IMMIGRANT RIGHTS IN THE UNITED

STATES .........................................................................................

A. Voting ...........................................................................................

B. Military Service ............................................................................

Assistant Professor, Valparaiso University Law School. I would like to

thank Heidi Altman, Aaron Caplan, Rosalie Berger Levinson, Hiroshi Motomura, Andrew Schoenholtz, Philip Schrag, and Bernard Trujillo for their thoughtful comments on the Article.

2 [DECEMBER 2012]


C. Public Benefits .............................................................................

D. Education .....................................................................................

E. Work .............................................................................................

F. Property .......................................................................................

G. Speech ..........................................................................................

H. Criminal Procedural Rights .........................................................

I. Due Process .................................................................................

II. AN EROSION OF IMMIGRANT RIGHTS ............................................

A. Stricter Membership Rules ...........................................................

B. Narrowing Membership Rights for Non-Citizens ........................

C. Narrowing Rights of Personhood ................................................

D. Increasingly Popular Substitutes for Individual Rights ...............

1. Federalism ....................................................................................

2. Agency Skepticism ......................................................................

III. WHY THE SHIFT MIGHT HAVE HAPPENED ....................................

A. Equal Protection Doctrine ...........................................................

B. Popular Opinion ..........................................................................

C. Administrative Law and Theory ...................................................

IV. WHAT HAS BEEN LOST .................................................................

A. Gaps in Federalism ......................................................................

B. The Flaws of Agency Skepticism ..................................................

V. WHY RIGHTS MATTER ..................................................................

A. Rights of Personhood ...................................................................

B. Membership Rights ......................................................................

C. Non-persons and Non-members ...................................................

CONCLUSION .......................................................................................

INTRODUCTION

As the Supreme Court recently debated the fate of Arizona’s

effort to crack down on unauthorized immigration, protestors

gathered in the sun-drenched space between the Capitol and the

Supreme Court. On the left (facing away from the Court, toward

the Capitol), protestors chanted, el pueblo, unido, jamás será

vencido—“the people, united, will never be defeated.” On the

Changing Rights of Immigrants 3


right, a protestor held a sign with a simple rejoinder: “We Are a

Nation of USA Citizens.”1

The two slogans raise competing claims about who is entitled

to concern and respect in the United States. The sign implied a

nation of citizens owes nothing to non-citizens. On the other hand,

a united “People” might be composed of more than just citizens; it

could include persons with other types of connections to the United

States, or it could even refer, in the sense of left-wing politics, to

the proletariat. Both, in other words, might be communitarian

slogans, with each defining community differently. Read another

way, the chant might also be staking a liberal claim—“the People”

could be, simply, all persons, every one of whom is entitled to core

freedoms.2

Each of these readings reflects a different view about the scope

of American rights. Do rights in this country belong to all persons

or just to members, and if the latter, who are the rights-bearing

members? Inside the Court, the Justices were also concerned about

rights, but not individual ones. They considered the proper balance

of state and federal rights—whether Arizona’s enforcement regime

was preempted by federal authority over immigration.

In another era, the Court might have concerned itself more

closely with the questions of individual rights invoked by the

protestors than the structural questions at the heart of Arizona.3 In

1982, for example, the Court considered both preemption and

1 Dana Milbank, On Arizona Immigration Law, Justice Scalia and Street

Protesters Make Same Case, WASH. POST, Apr. 25, 2012. 2 For a description of the debate between communitarianism and liberalism,

see MICHAEL J. SANDEL, INTRODUCTION TO LIBERALISM AND ITS CRITICS 5

(Michael J. Sandel ed., 1984). In essence, liberals of both the classical and

modern variety take as a given that individuals have rights, and society exists to

protect those rights. Communitarians flip this analysis, urging that rights and

values have meaning only through the shared experience of members of a

community. 3 Arizona v. United States, 132 S. Ct. 2492 (2012).

4 [DECEMBER 2012]


equal protection claims in Plyler v. Doe, a case in which Texas had

attempted to cut off education for undocumented immigrant

children.4 The Court never addressed the preemption issue; it

resolved the case on equal protection grounds.5

The Equal Protection Clause was enacted through the

Fourteenth Amendment, a provision designed to remedy the

subordination of slaves by guaranteeing both universal citizenship

to persons born in the United States and equal protection of the law

to all persons. In the same breath, it speaks of two types of rights:

membership and personhood.6 Its text goes to the heart of the

debate outside the Supreme Court as Arizona was argued within—

the promise and limitation of American rights. Yet Arizona did not

address the Fourteenth Amendment.7 One obvious explanation was

that the federal government plaintiff was more preoccupied with its

own rights than the rights of non-citizens. However, Arizona ought

to be considered alongside a trend in which immigrant equal

protection claims are less likely to be raised, argued, and decided

today than they were during the Plyler era.

In the 1970s and 1980s, the Court applied equal protection

review to strike down a variety of legislation discriminating

against non-citizens.8 It seemed for a time that non-citizens’ equal

4 457 U.S. 202, 208–09 (1982) (explaining that the District Court ruled

favorably on both the plaintiffs’ equal protection and preemption arguments; the

Fifth Circuit upheld the equal protection claim but reversed on preemption). 5 Id. at 230.

6 U.S. CONST. amend. XIV, § 1 (providing both that individuals “born or

naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United” and that all persons are entitled to equal protection of the

law). 7 See Arizona v. United States, 132 S. Ct. 2492 (2012).

8 See Bernal v. Fainter, 467 U.S. 216 (1984); Plyler v. Doe, 457 U.S. 202

(1982); Nyquist v. Mauclet, 432 U.S. 1 (1977); Examining Bd. of Engineers,

Architects & Surveyors v. Flores de Otero, 426 U.S. 572 (1976); In re Griffiths,

413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.S. 634 (1973); Graham v.

Richardson, 403 U.S. 365 (1971).



protection rights were robust, at least in the context of

constitutional claims that did not concern the federal government’s

power to exclude or deport them.9 But in the years since, the once

sharp contours of the Court’s equal protection analysis for non-

citizens have begun to blur and even fade; the Court hasn’t decided

an equal protection case in favor of an immigrant in decades, the

lower courts increasingly reject such claims, and litigators now

avoid making them.10

In another recent case, Judulang v. Holder,

the Court reprised an equal protection issue resolved by the Second

Circuit in 1976, but dealt with it instead on Administrative

Procedure Act (APA) grounds.11

The prior term, a majority of the

Court couldn’t agree on an appropriate analysis for an equal

protection challenge to a citizenship provision, meaning the Court

affirmed the lower court decision without issuing an opinion.12

The change is by no means complete—substantial exceptions

can be found where the lower courts have upheld immigrants’

equal protection claims,13

and several important Supreme Court

decisions in the past decades have affirmed immigrant rights other

9 Scholars have distinguished between immigration and “alienage” cases,

which involve the rights of non-citizens outside the context of citizenship,

deportation, and exclusion. See LINDA BOSNIAK, THE CITIZEN AND THE ALIEN

54 (2006) [hereinafter BOSNIAK, CITIZEN]. The Burger Court’s principal equal

protection decisions were all alienage cases. One explanation for the Court’s

divergent treatment of alienage and immigration cases is the “plenary power”

doctrine, which precludes courts to a large extent from reviewing substantive

constitutional claims in the immigration law context. See Hiroshi Motomura,

The Curious Evolution of Immigration Law: Procedural Surrogates for

Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1627 (1992)

[hereinafter Motomura, Curious Evolution]. 10

See infra Part II.D. 11

Judulang v. Holder, 132 S. Ct. 476 (2011). 12

Flores-Villar v. United States, 131 S. Ct. 2312 (2011). 13

See Hispanic Interest Coal. of Ala. v. Governor of Ala., No. 11-14535, 2012

WL 3553613 (11th Cir. Aug. 20, 2012); Dandamudi v. Tisch, 686 F.3d 66, 79

(2d Cir. 2012).

6 [DECEMBER 2012]


than equal protection.14

Nonetheless, it is impossible to consider

the Burger Court’s decisions concerning immigrants and

immigration alongside those of recent years without concluding

that there has been a change.

The Court’s immigration decisions from the past term show

that non-citizens can still win federal cases. Arizona teaches that

preemption theory is one way for non-citizens to win before the

contemporary court. Judulang, where the Court ruled in the non-

citizen’s favor on APA grounds, is another good example of a

successful strategy. Just as Arizona was preceded by a series of

lower court decisions finding state and local anti-immigrant laws

to be preempted, Judulang can be viewed as part of a larger

landscape of federal court decisions criticizing the irrationality of

agency action.

For example, Judge Richard Posner of the Seventh Circuit has

spearheaded a crusade against the Board of Immigration Appeals

(the Board) and its lack of real oversight of an overworked and

sometimes sloppy corps of immigration judges. In the process of

doing so, he has authored a corpus of decisions that has

significantly altered the face of immigration law and made himself

into one of the most widely discussed jurists in immigration

practice and scholarship.15

Yet examination of a decade’s worth of

Judge Posner’s immigration law decisions reveals that this pro-

immigrant judge rarely ever mentions non-citizen’s rights.16

14

See Zadvydas v. Davis, 533 U.S. 678, 699–700 (2001) (indefinite detention

of non-citizens would violate their right to due process); Padilla v. Kentucky,

130 S. Ct. 1473, 1486 (2010) (the failure to advise non-citizens of the

deportation consequences of criminal convictions would violate their Sixth

Amendment right to effective assistance of counsel). 15

See, e.g., Adam B. Cox, Deference, Delegation, and Immigration Law, 74

U. CHI. L. REV. 1671 (2007) (considering two possible bases for Judge Posner’s

skepticism of the immigration agency: nondelegation principles or a concern

with institutional competence). 16

See infra Part II.



Instead, he scathingly criticizes the competence of the immigration

agency—its adjudicators, laws and regulations, and bureaucratic

machinery.17

These decisions teach that if an immigration lawyer wants to

win an immigration appeal, she should not argue that her client has

rights; she should assert that the immigration judge is incompetent,

the Board indifferent, the bureaucracy inefficient, the regulations

irrational. Immigrants are the beneficiaries more than the subjects

of these decisions. There is, to be sure, a rights principle implicit in

them: the right to a fair procedure. This recognition of immigrants’

procedural rights is consistent with other recent case law upholding

immigrants’ procedural rights in criminal cases or cases involving

the quasi-criminal area of immigration detention.18

The administrative law, criminal procedure, and detention

cases all involve rights claims in a traditional Lockeian sense—

claims for freedom from heavy-handed governmental action. In

contrast, when immigrants make communitarian claims for equal

treatment—a share in the privileges and benefits of citizenship—

their claims are increasingly rejected. In order to see this shift, it is

necessary to understand the breadth of membership rights that

immigrants in the United States have historically possessed. Until

the early twentieth century, some states granted state citizenship

rights, including voting, to immigrants, particularly “declarant

aliens” who had filed “first papers” stating their intention to

17

See Cox, supra note 15, at 1679–82. 18

See supra note 14. For a general discussion of the tendency of courts to rely

on procedural due process as a surrogate for substantive constitutional rights, see

Motomura, Curious Evolution, supra note 9, at 1656–79.

8 [DECEMBER 2012]


naturalize.19

This no doubt stemmed from a national consensus that

immigrants (at least European ones) were future citizens.20

The equal protection decisions of the Burger Court era can be

situated within this larger context of immigrant membership rights.

The Burger Court upheld immigrant equal protection challenges to

restrictions on licensing, education, financial aid, bar admission,

and state welfare benefits—all perks of the type that we tend to

associate with membership.21

The exact contours of “membership

rights” versus “rights of personhood” are fuzzy, and no doubt,

constantly shifting. At one time, for example, it was assumed that

work was a natural right, but now non-citizens’ ability to work is

sharply regulated.22

Even the sanctified American right of free

speech does not necessarily belong today to all non-citizens. In a

recent D.C. District Court panel decision that the Supreme Court

affirmed without opinion, the court held that non-lawful permanent

residents’ ability to contribute funds to political candidates is

unprotected by the First Amendment.23

Viewed within this framework, the receptivity of federal courts

to claims bashing the immigration bureaucracy seems like it might

have very little to do with immigrant rights. In fact, one reason the

narrative of bureaucratic incompetence might work so well is that

it taps into popular disaffection with the government’s immigration

enforcement policies. For decades now, the anti-immigrant right

has decried the government’s failure to enforce immigration laws

19

See Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical,

Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV.

1391, 1399–1416 (1993). 20

See HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF

IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 115–25 (2006)

[hereinafter MOTOMURA, AMERICANS IN WAITING]. 21

See supra note 8. 22

See infra Part II.B.2. 23

Bluman v. Fed. Election Comm’n, 800 F.Supp.2d 281, 288 (D.D.C. 2011),

aff’d, 132 S. Ct. 1087 (2012).



in the face of a so-called “invasion” or “flood” of “illegal aliens.”24

Conversely, on the left, immigrant advocates have criticized

draconian immigration enforcement.25

The former Immigration

and Naturalization Service (INS) and its successor, the Department

of Homeland Security (DHS), are agencies with few supporters

and many enemies; as a result, it has become dogma that DHS is a

bureaucratic bungler, charged with sober responsibilities that it

uniformly botches. Conservative judges who have been trained to

be suspicious of governmental regulation can readily reverse the

agency on the ground that it is irrational or incompetent without

drawing popular ire over their incidental support for the one

constituency even less popular than governmental bureaucracies:

immigrants.

The thesis of this Article is that immigrants do not necessarily

gain when their opponents lose. Although courts are willing to

enforce the federal government’s power to preempt state

immigration law and to deeply probe the rationality of immigration

decisions, they are less likely to concede what was once a given—

that immigrants are largely entitled to equal treatment. Today non-

citizens are balkanized into a host of hierarchical categories, and

even the Lawful Permanent Residents at the top can’t lay claim to

many of the rights of membership that “declarant aliens” enjoyed

during an earlier era. Instead, non-citizens now get reasonable

treatment, or, when they are lucky, the noblesse oblige of the

Executive. But without substantial and durable rights, they cannot

adequately defend the benefits they receive or effectively attack

federal programs that hurt them.

24

See PETER H. SCHUCK, CITIZENS, STRANGERS, AND IN-BETWEENS: ESSAYS

ON IMMIGRATION AND CITIZENSHIP 183 (1998). 25

See, e.g., Editorial, No Exit From a Bad Program, N.Y. TIMES, Feb. 28,

2011, at A22 (criticizing the “Secure Communities” enforcement initiative,

which mandates that state and local law enforcement agencies cooperate with

the federal government to deport immigrants with criminal cases).

10 [DECEMBER 2012]


Consider two recent Obama administration initiatives, one that

benefits non-citizens, another that hurts them. First, the

administration has a new program for granting “Deferred Action to

Childhood Arrivals” (DACA). Essentially, deferred action is a

reprieve from deportation for immigrant youths who would benefit

from a repeatedly filed but never passed bill called the

“Development, Relief, and Education for Alien Minors”

(DREAM) Act.26

Second, the administration has aggressively

pursued removal of “criminal aliens” through the “Secure

Communities” program, which facilitates the deportation of non-

citizens apprehended by states and localities.27

Immigrant

advocates have cheered the DACA initiative but sharply criticized

Secure Communities, which they say often subjects long-term

residents to deportation for minor traffic infractions. Some states

and localities have been sympathetic to these arguments, and

localities such as the District of Columbia, Santa Clara, San

Francisco, and Cook County (Chicago) have all obstructed federal

efforts by refusing to comply with DHS detainers for some non-

citizens held in criminal detention.28

The same principles that allowed non-citizens to prevail in

Arizona and Judulang might be used to defend Secure

Communities and to strike down the DACA initiative. DACA was

promulgated without congressional authorization, public comment

or participation, or a record of a reasoned decision-making process

in which the DHS considered arguments against the initiative as

well as those in favor of it. Moreover, the same principles that

allowed the federal government to preempt anti-immigrant

26

See Julia Preston, Young Immigrants, In America Illegally, Line Up for

Reprieve, N.Y. TIMES, Aug. 14, 2012, at A; Julia Preston and John Cushman, Jr.,

Obama to Permit Young Migrants to Remain in U.S., N.Y. TIMES, June 16,

2012, at A1. 27


See Lornet Turnbull, 3 King County Officials Balk at ICE Detainer

Program, SEATTLE TIMES, May 9, 2012; Mihir Zaveri, In D.C., No Warm

Welcome for Immigration Crackdown, WASH. POST, June 6, 2012.



legislation in Arizona might also justify preemption of local efforts

to resist Secure Communities. Thus, federalism and agency

skepticism are tenuous proxies for non-citizen rights. In a way,

they are even subordinating proxies: preemption analysis affirms

the power of the federal government over non-citizens, and the

APA is in large part an instrument for assuring agencies’

accountability to majoritarian preferences, which are often hostile

to non-citizens.

This Article contends that rights matter. While agency

skepticism and federalism are intriguing tools for non-citizens to

appeal to conservative judges, they are poor substitutes for

individual rights like equal protection. Part I gives a brief historical

overview of the rights of immigrants in the United States,

explaining how, at various times, immigrants have enjoyed both

rights of personhood and rights that we typically associate with

membership. Part II describes the shift away from a jurisprudence

of immigrant membership rights to one focused on the rights and

responsibilities of the federal government and its agencies. Part III

sets out some potential reasons for this shift, including the

sharpening of APA “arbitrary and capricious” review, a broad-

based anti-regulatory movement sanctioned by academic doctrines

like Public Choice theory and the Law and Economics movement,

and the transference of anti-immigrant sentiment to the agency that

regulates immigrants. Part IV argues that something important has

been lost in this transition, because the surrogates for individual

rights that courts have increasingly come to rely on may not

always adequately protect non-citizens. Part V expands on this

theme, urging that rights matter to non-citizens because of their

prestige and power to protect, and matter to everyone else because

the equitable distribution of rights is a prerequisite for a just

society.

12 [DECEMBER 2012]


I. A SHORT HISTORY OF IMMIGRANT RIGHTS IN THE UNITED

STATES

This nation was seemingly founded on the idea that all persons

enjoy core rights of “life, liberty, and the pursuit of happiness.”29 In

the years since, Americans have come to little consensus about what

these rights mean; scholars cannot even seem to agree on the value of

rights.30 Regardless of how much Americans debate the content of

their rights, it is clear that the promise of the Declaration of

Independence—that all persons have core freedoms—is one that

resonates. Thus, United States courts have long agreed that non-

citizens are entitled to certain basic rights, like the right to equal

protection.31

Yet if the Declaration of Independence begins by referencing

universal human rights, the Constitution starts by reference to a select

club of rights-holding members. In the Preamble, it is “the people”

who “secure the blessings of liberty” to themselves and their

posterity.”32 And it was quite clear at the time that “the people” did

not include all persons within the territory of the United States; many

of the drafters owned slaves whose liberty they forcefully restricted.

29

THE DECLARATION OF INDEPENDENCE (U.S. 1776). 30

For a defense and explication of rights, see RONALD DWORKIN, TAKING

RIGHTS SERIOUSLY xi, 269 (1977) (defining a right as a “political trump” held

by an individual so that a collective goal cannot override it). For a

communitarian critique of the “atomistic” notion that rights can have primacy

over community, see CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN

SCIENCES 187–210 (1985). For a critique of rights from the Marxian standpoint

of the early “Critical Legal Studies” movement, see Mark Tushnet, An Essay on

Rights, 62 TEX. L. REV. 1363, 1363–64 (1984) (arguing that rights are unstable,

indeterminate, reifying, and reactionary). 31

See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (an ordinance

prohibiting laundries made of wood that was discriminatorily applied to deny

laundry licenses to Chinese nationals violated the Equal Protection Clause). For

further discussion of the development of equal protection doctrine in alienage

cases, see infra Part III.A. 32

U.S. CONST. pmbl.



From the beginning, there was a fierce debate about whether non-

citizens were part of “the people.” Concerned about the importation

of dangerous revolutionary ideas from France, the late eighteenth

century Congress passed a series of anti-immigrant measures known

today as the “Alien Acts.”33 During the debates over these measures,

Federalists argued that all rights stemmed from the Constitution,

which was a kind of compact between citizens; thus, only citizens

could assert rights.34 In contrast, the Jeffersonian Republicans argued

that the Constitution referred to persons, not citizens, and that all

persons were therefore entitled to constitutional protections.35 The

Republicans also based their arguments on theories of natural rights,

human rights, and “mutuality of obligation”—the notion that because

immigrants were subject to U.S. law, they were also entitled to invoke

the protection of the Constitution.36

Over the years since, United States courts have teetered between

these two arguments, ultimately coming to rest at a wobbly

compromise between the two. For example, everybody supposedly

has a general right of free expression, but only some people have a

right to express their opinions through voting.37 The former right

33

There were three laws making up what are commonly referred to as the

“Alien Acts.” See An Act to Establish an Uniform Rule of Naturalization, 1 Stat.

566 (1798) [hereinafter Naturalization Act]; An Act Concerning Aliens, 1 Stat.

570 (1798) [hereinafter Alien Friends Act]; and An Act Respecting Alien

Enemies, 1 Stat. 577 [hereinafter Alien Enemy Act]. One controversial

provision of the Alien Friends Act authorized the president to issue ex parte

orders of deportation against any resident alien suspected of being “dangerous to

the peace and safety of the United States.” 1 Stat. 570, § 1. 34

GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS,

BORDERS, AND FUNDAMENTAL LAW 54 (1996) [hereinafter NEUMAN,

STRANGERS TO THE CONSTITUTION]. 35

Id. at 54, 57. 36

Id. at 57–60. 37

Compare Bridges v. Wixon, 326 U.S. 135, 161 (1945) (all persons in the

United States, including aliens, are entitled to the First Amendment right of free

expression), with Burdick v. Takushi, 504 U.S. 428, 441 (1992) (“the right to

vote is the right to participate in an electoral process that is necessarily

structured to maintain the integrity of the democratic system”).

14 [DECEMBER 2012]


comes from a view about individual autonomy that pervades our legal

system; the latter from our structure of government. It might therefore

be said that there are two types of rights in the United States today:

rights that belong to every person, and rights that belong to “the

people” who are members of our political system. Relatedly, there are

two potential sources of rights: personhood and polity.

The implications and philosophical roots of these two rights

paradigms—personhood and membership—will be explored in Part

V. For now it is enough to note that they have each impacted the

rights of non-citizens. There are two important points that are

necessary to understand how these two paradigms have played out.

First, courts are more likely to respect non-citizens’ membership

rights in certain contexts than in others. Second, non-citizens’ legal

status has influenced their rights of membership and even

personhood.

The context in which courts are least likely to uphold immigrants’

membership rights is in deportation and exclusion cases, because of

something called the “plenary power” doctrine.38 The story of plenary

power begins with Chae Chan Ping v. United States, or the “Chinese

exclusion case.”39 In Chae Chan Ping, the Court refused to address

the country’s discriminatory bar on the admission of Chinese

immigrants, even in the case of an excluded Chinese resident who had

38

See Stephen H. Legomsky, Immigration Law and the Principle of Plenary

Congressional Power, 1984 SUP. CT. REV. 255, 255 (1984) (defining “plenary

power” as the Court’s refusal “to review federal immigration statutes for

compliance with substantive constitutional restraints”). In addition to

immigration, the federal government has exercised similar plenary power over

its territories and relations with Native Americans. The fundamental

characteristics of plenary power in all three contexts, according to one recent

commentary, are that the authority is inferred from sovereignty rather than based

in the constitutional text, the Constitution imposes few restraints on its exercise,

and its implementation is largely insulated from judicial review. See Sarah H.

Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the

Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L.

REV. 1, 8 (2002). 39

130 U.S. 581 (1889).



previously been granted the right to re-enter.40 The Court’s

justification was that it would generally defer to the political branches

of government when it comes to the exclusion or deportation of non-

citizens, because they have plenary power in the area of foreign

relations. Over the years, the Court has frequently relied on this

doctrine to support judicial non-intervention in cases involving the

removal of non-citizens.41

However, in cases outside the context of exclusion and

deportation (sometimes called “alienage” cases), the Court has

affirmed that immigrants enjoy a host of rights.42 The boundaries of

immigrants’ rights are fluid, but at times, non-citizens have enjoyed

not only rights of personhood, but considerable membership rights.43

Yet the allocation of these rights has been complicated by distinctions

between different classes of non-citizens—a set of distinctions that

has grown increasingly complex and legalistic as immigration law has

evolved. Occasionally, these distinctions have even filtered into

courts’ analysis of rights that historically all persons in the United

States have possessed, meaning that non-citizens’ basic rights of

personhood have sometimes been contested. The remainder of this

Part will consider some of the individual rights that non-citizens in

the United States have possessed.

A. Voting

Today when non-citizens vote they face harsh penalties,44 but in

the early years of the Republic, newly minted states commonly

allowed alien inhabitants to vote in local, state, and federal

40

Id. at 609. 41

Id. 42

BOSNIAK, CITIZEN, supra note 9, at 54. 43

Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the

Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955, 977–

79 (1988) [hereinafter Bosniak, Exclusion and Membership]. 44

See 8 U.S.C. § 1182(a)(10)(D).

16 [DECEMBER 2012]


elections.45 After the War of 1812, the practice of alien voting slowed

somewhat, but grew again in the mid-nineteenth century as states

increasingly followed Wisconsin’s lead in allowing “declarant aliens”

to vote.

Until 1952, the law required non-citizens seeking eventual

naturalization to file “first papers,” indicating an intention to

naturalize.46 This declaration of intent could be made at any point

after arrival, did not deprive the non-citizen of his original nationality,

did not legally obligate him to complete the process of becoming a

citizen, and did not even require an oath of allegiance to the United

States.47 Nonetheless, it became increasingly common during the

nineteenth century for states to allow declarant aliens to vote.48 The

alien suffrage movement accelerated after the Civil War, when many

states granted declarant aliens who had fought in the War the right to

vote.49 By World War I, however, a rapid decline had begun, and by

1926 all states had outlawed alien suffrage.50

B. Military Service

Non-citizens have long enjoyed (or suffered, depending on how

you look at it) the right of military service. During the Civil War,

nearly twenty-five percent of the combatants were foreign-born.51

Pursuant to the Enrollment Act of March 3, 1863, men between the

ages of twenty and forty-five “of foreign birth who shall have

declared on oath their intention to become citizens” were subject to

45

MOTOMURA, AMERICANS IN WAITING, supra note 20, at 116–19; NEUMAN,

STRANGERS TO THE CONSTITUTION, supra note 34, at 63–71; Raskin, supra note

19, at 1402–03. 46

See Nationality Act of 1940, ch. 876, § 331, 54 Stat. 1137, 1153 (1940)

(codified at 8 U.S.C. § 731 (1946) (repealed 1952)). 47

NEUMAN, STRANGERS TO THE CONSTITUTION, supra note 34 at 65. 48

Raskin, supra note 19, at 1407–08. 49

Id. at 1414–15. 50

Id. at 1416. 51

JOHN W. CHAMBERS II, TO RAISE AN ARMY: THE DRAFT COMES TO

MODERN AMERICA 49 (1987)



the draft.52 After the Civil War, non-citizen combatants were entitled

to military pension benefits, and appear to have sometimes received

them even after having left the United States to return to their

countries of origin.53 However, empirical research suggests that as a

practical matter, non-citizens had less access to pension benefits than

citizens and were rewarded less on average than native recruits.54

Non-citizens continued to be subject to conscription up until it

was abolished in 1973,55 and to this day most non-citizens in the

United States (including undocumented aliens) must register for the

selective service.56 Today non-citizens remain an important part of the

United States’ volunteer military, and there are special provisions of

immigration law designed to facilitate citizenship for non-citizens

who serve in the military.57

C. Public Benefits

Since the origins of welfare programs, non-citizens have received

certain public benefits, although their right to do so seems to always

have been equivocal. On one hand, the jurisprudential high water

mark for immigrant equal protection arose in a challenge to state

restrictions on immigrant access to welfare benefits. In Graham v.

Richardson, the Court held that lawful immigrants are a “suspect

class” that has been subjected to historical mistreatment.58 Thus, the

Court found that state laws discriminating against lawful immigrants

should be subjected to heightened scrutiny, and that Arizona and

52

Enrolment Act, ch. 75, 12 Stat. 731 (1863). 53

ELLA LONN, FOREIGNERS IN THE UNION ARMY AND NAVY 613 (1951). 54

Peter Blanck & Chen Song, “With Malice Toward None; with Charity

Toward All”: Civil War Pensions for Native and Foreign-Born Union Army

Veterans, 11 TRANSNAT’L L. & CONTEMP. PROBS. 1, 39 (2001). 55

SCHUCK, supra note 24, at 169. 56

See 50 App. U.S.C. § 453 (2012). 57

See 8 U.S.C. § 1440. See generally MARGARET STOCK, IMMIGRATION LAW

AND THE MILITARY (2012) (analyzing the effects of immigration and citizenship

law on U.S. military personnel). 58

Graham v. Richardson, 403 U.S. 365, 372 (1971).

18 [DECEMBER 2012]


Pennsylvania’s discriminatory state welfare codes failed to meet this

test.59

However, in Mathews v. Diaz, the Court backtracked, holding that

the federal government had discretion to withhold medical benefits

from refugees that it provided to lawful permanent residents who had

lived in the United States for at least five years.60 With little judicial

brake on benefit restriction, the trend since Mathews has been towards

limiting immigrant access to benefits. The Personal Responsibility

and Work Opportunity Reconciliation Act of 199661 (PRWORA)

restricted even lawful immigrants’ access to Medicaid, Social

Security, and cash welfare benefits.62

Taken together, Graham and Mathews appear to set out a

spectrum of membership rights, with the status of the immigrant and

identity of the discriminator being the relevant factors. In Graham,

the discriminators were states; in Mathews, it was the federal

government, with its plenary power over immigration. In Graham, the

challengers were lawful permanent residents (LPRs); in Mathews, two

refugees and one LPR. The holding of Graham—that alienage is a

suspect class—has mostly been limited in the years since to cases

involving LPRs subject to state discrimination.63

59

Id. at 376. 60

426 U.S. 67, 84 (1976). 61

Pub. L. 104–193, 110 Stat. 2105. 62

Raquel Aldana, On Rights, Federal Citizenship, and the “Alien,” 46

WASHBURN L.J. 263, 272 (2007). 63

There were two cases where the Burger Court indicated that federal

discrimination against non-citizens could violate the Equal Protection Clause.

The first was Hampton v. Mow Sun Wong, 426 U.S. 88, 90 (1976), where the

Court considered the constitutionality of a United States Civil Service

Commission ban on the employment on resident aliens. The Court recognized in

Hampton that federal discrimination can trigger equal protection review, but

held that equal protection review is more limited where federal, rather than state,

action is at issue, and the federal government advances “overriding national

interests.” Id. at 100–01. Nonetheless, the Court ruled in favor of the non-citizen

on due process grounds, holding that “[w]hen the Federal Government asserts an

overriding national interest as justification for a discriminatory rule which would



D. Education

The traditionally state realm of education is an area where non-

citizens have enjoyed substantial membership rights. Nyquist v.

Mauclet involved a relatively straightforward application of Graham:

the plaintiffs were lawful permanent residents challenging a New

York state rule that limited higher education funding to citizens,

persons intending to become citizens, or refugees.64 The Court found

that that the rule triggered strict scrutiny and struck it down.65

A more difficult question arose in Plyler v. Doe, which concerned

the rights of undocumented children to education.66 The Court

stopped short of applying strict scrutiny pursuant to Graham,

acknowledging that the children’s unauthorized status merited

different treatment.67 Instead, it applied a kind of intermediate

scrutiny, ultimately finding that Texas’s effort to cut off education for

unauthorized migrant children was unconstitutional.68 The Court’s

finding that Texas’s law violated equal protection is probably an

outlier, unlikely to be repeated outside the unique context of an

important right like education and sympathetic child plaintiffs.69

violate the Equal Protection Clause if adopted by a State, due process requires

that there be a legitimate basis for presuming that the rule was actually intended

to serve that interest.” Id. at 103. The second case was Examining Bd. v. Flores

de Otero, 426 U.S. 572 (1976), where the Court struck down a statute enacted

by the Puerto Rican legislature that restricted the ability of non-citizens to

practice engineering in the territory. The Court declined to answer the question

whether the statute implicated equal protection review under the Fifth

Amendment because federal action was at issue, or under the Fourteenth

Amendment, which governs state action, but found that the statute would be

invalid under either analysis. Id. at 601. 64

Nyquist v. Mauclet, 432 U.S. 1, 4–5 (1977). 65

Id. at 11. 66

457 U.S. 202 (1982). 67

Id. at 220. 68

Id. at 223–24. 69

See Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV.

2037, 2075–76 (2008).

20 [DECEMBER 2012]


E. Work

Early Supreme Court cases upheld immigrants’ right to work in

the face of state restrictions, relying heavily on the logic and rhetoric

of natural rights. In Yick Wo v. Hopkins, the Court struck down a San

Francisco ordinance prohibiting unlicensed laundry establishments

constructed of wood—an ordinance that was selectively enforced by

the city to close down laundries owned by Chinese persons.70 In

finding that San Francisco had violated Yick Wo’s constitutional right

to equal protection, the Court undertook a relatively lengthy

discussion of natural rights, including the right to make a living

without being subject to “the mere will of another.”71 The Court

instructed that in the American system, “sovereignty itself remains

with the people, by whom and for whom all government exists and

acts.”72 Yet the Court stressed that the questions before it “are to be

treated as involving the rights of every citizen of the United States

equally with those of the strangers and aliens who now invoke the

jurisdiction of the court.”73 For the Court in Yick Wo, “the People”

were not just the citizens of the United States; they were all persons,

who enjoyed a natural right to work.

The Court returned to this theme of inalienable rights early in the

twentieth century. In Truax v. Raich, the Court struck down an

Arizona law prohibiting the employment of more than a certain

allotment of non-citizens.74 According to the Court, the “right to work

for a living in the common occupations of the community is of the

very essence of the personal freedom and opportunity that it was the

purpose of the Amendment to secure.”75 At the time it seemed that

work had become well-established as a right of personhood.

70

118 U.S. 356, 373–74 (1886). 71

Id. at 369. 72

Id. at 370. 73

Id. at 369. 74

239 U.S. 33 (1915). 75

Id. at 41.



In the years since, it has become far less clear that non-citizens

have a protected right to work. States may bar immigrants from

employment in jobs with a “governmental function,” such as state

elective office positions, the state police, public school teachers, and

deputy probation officers.76 The Court’s rationale in these cases relies

heavily on the theory of membership rights: such persons “perform

functions that go to the heart of representative government.”77

Moreover, it is unquestionable that the federal government can

regulate non-citizen employment,78 and non-citizens who work in

violation of these rules cannot seek the same remedies for workplace

violations as citizens.79 In some cases, states can regulate non-

citizens’ employment too. States are preempted by federal law from

criminalizing working without proper documentation,80 but they can

suspend or revoke the licenses of businesses that fail to comply with

federal requirements, as long as the state scheme tracks the federal

one closely enough.81 Today, work is a right reserved for members of

the U.S. system—citizens and certain privileged immigrants.

F. Property

The early twentieth century Court accepted in Truax that the right

to work is a basic attribute of personhood, but treated real property

76

See Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Ambach v. Norwick,

441 U.S. 68, 73–75 (1979); Foley v. Connelie, 435 U.S. 291 (1978); Sugarman

v. Dougall, 413 U.S. 634, 647 (1973). 77

Sugarman, 413 U.S. at 647. 78

See 8 C.F.R. § 274a.12 (setting out the classes of aliens authorized to accept

employment). For an overview of restrictions on seeking new employment that

were placed on migrant laborers under American guest worker programs, see

Juan Carlos Linares, Hired Hands Needed: The Impact of Globalization and

Human Rights Law on Migrant Workers in the United States, 34 DENV. J. INT’L

L. & POL’Y 321, 329–37 (2006). 79

See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151–52

(2002) (unauthorized migrant barred from obtaining backpay as a remedy for his

discharge in violation of labor law). 80

Arizona v. United States, 132 S. Ct. 2492, 2503–05 (2012). 81

Chamber of Commerce of United States v. Whiting, 131 S. Ct. 1968, 1986

(2011).

22 [DECEMBER 2012]


like a membership right. In Terrace v. Thompson,82 the Court held

that the state of Washington could prohibit non-declarant aliens from

owning real property. The Court found it rational to distinguish

between declarant and non-declarant aliens, citing declarant aliens’

former voting rights and their obligation to serve in the military.83

Ultimately, the Court was unswayed by the fact that this rule

disproportionately affected Asian Americans, who were ineligible to

naturalize.84 It acknowledged the natural rights analysis of Truax, but

claimed that the right to own property was less universal than the

right to work: “The quality and allegiance of those who own, occupy

and use the farm lands within its borders are matters of highest

importance and affect the safety and power of the state itself.”85

To this day, alien land restrictions persist in twenty-nine states.86

When courts have struck down such laws, it has typically been

because they restrict citizens’ ability to transfer land, not because of

immigrants’ rights.87 Although the persistence of antiquated alien land

laws may have more to do with inertia than their post-Graham

constitutionality, a new class of restrictions on non-citizen property

rights has lately gained currency. Increasingly, localities and states

have adopted restrictions on leasing land to unauthorized

immigrants;88 in a number of cases, courts have found these

restrictions to be preempted by federal immigration law.89 Thus,

immigrants have won these cases not as rights holders on their own,

82

263 U.S. 197 (1923). 83

Id. at 218–19. 84

Id. at 220. 85

Id. at 221. 86

Allison Brownell Tirres, Property Outliers: Non-Citizens, Property Rights

and State Power, GEO. IMMIG. L.J. (forthcoming 2013), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2166312. 87

See Oyama v. California, 332 U.S. 633 (1948). 88

See Tirres, supra note 86. 89

See Villas at Parkside Partners v. City of Farmers Branch, Tex., 675 F.3d

802, 814 (2012), reh’g en banc granted 688 F.3d 801 (2012); Lozano v.

Hazelton, 620 F.3d 170, 225 (3d Cir. 2010), vacated by City of Hazleton, Pa. v.

Lozano, 131 S. Ct. 2958 (2011) (for further consideration in light of Chamber of

Commerce v. Whiting).



but by asserting that they are third party beneficiaries of federal

rights. Non-citizen property rights have always at best been qualified,

and have prevailed when packaged with citizens’ property rights or

the rights of the federal government.

G. Speech

The text of the First Amendment bars Congress from passing any

law abridging free speech without limitation as to the status of the

speaker.90 The Court has interpreted this language to protect a variety

of expressive activity beyond pure speech, from artistic expression to

association and advertising, to name just a few.91 In the early

twentieth century, the Court occasionally seemed to employ a weaker

form of First Amendment scrutiny in cases involving non-citizens in

deportation and exclusion proceedings.92 However, by mid-century,

the Court stated unequivocally that “[f]reedom of speech and of press

is accorded [to] aliens residing in this country.”93 Thus, in Bridges v.

Wixon, the Court found that the First Amendment protected the

former communist affiliation of the Australian labor organizer, Harry

Bridges.94 Although in Harisiades v. Shaughnessy the Court later

rejected a broad First Amendment challenge to the statute that made

90

U.S. CONST. amend. I. States are prevented from violating the First

Amendment because of the Fourteenth Amendment, which incorporates many of

the earlier provisions of the Bill of Rights and bars states from violating them.

See Cantwell v. State of Connecticut, 310 U.S. 296, 303 (1940). 91

See, e.g., Va. Pharmacy Bd. v. Va. Citizens Consumer Council, 425 U.S.

748, 762 (1976) (commercial speech); Nat’l Ass’n for Advancement of Colored

People v. Button, 371 U.S. 415, 428 (1963) (association); Kingsley Int’l Pictures

Corp. v. Regents, 360 U.S. 684 (1959) (film licensing). 92

See Maryam Kamali Miyamoto, The First Amendment After Reno v.

American-Arab Anti-Discrimination Committee: A Different Bill of Rights for

Aliens?, 35 HARV. C.R.-C.L. L. REV. 183, 193–95 (2000). 93

Bridges v. Wixon, 326 U.S. 145, 148 (1945) (citing Bridges v. California,

314 U.S. 252 (1941)). 94

Id. at 147.

24 [DECEMBER 2012]


Bridges deportable,95 it nowhere stated in its decision that non-

citizens have lesser First Amendment rights than citizens.96

Contemporary decisions cast some doubt on Bridges’ holding that

non-citizens enjoy full First Amendment protection. In Reno v.

American-Arab Anti-Discrimination Committee (AADC), the Court

rejected a selective enforcement claim raised by members of the

Popular Front for the Liberation of Palestine, who contended that the

government had singled them out because of their affiliation with an

unpopular group.97 The Court found that it lacked jurisdiction to

assess their claim, but nonetheless opined that where the Government

has a legitimate reason to deport an unauthorized immigrant, “the

Government does not offend the Constitution by deporting him for the

additional reason that it believes him to be a member of an

organization that supports terrorist activity.”98 The implication of

AADC is that non-citizens without lawful status might be entitled to

less First Amendment protection than lawful residents.

This was essentially the holding of a D.C. District Court panel in

Bluman v. Federal Election Commission.99 In Bluman, the court

considered a provision of the McCain-Feingold campaign finance

reform law barring non-citizens other than lawful permanent residents

from making campaign contributions. The court read Hariasiades as

support for the proposition “that aliens’ First Amendment rights

might be less robust than those of citizens in certain discrete areas.”100

It then relied on the political participation line of cases to find that

“[i]t is fundamental to the definition of our national political

95

342 U.S. 580, 592 (1952). 96

See T. Alexander Aleinikoff, Federal Regulation of Aliens and the

Constitution, 83 AM. J. INT’L L. 862, 869 (1989). 97

525 U.S. 471, 487–88 (1999). 98

Id. at 491–92. 99

800 F.Supp.2d 281, 288 (D.D.C. 2011), aff'd, 132 S. Ct. 1087 (U.S. 2012)

(holding “the United States has a compelling interest for purposes of First

Amendment analysis in limiting the participation of foreign citizens in activities

of American democratic self-government, and in thereby preventing foreign

influence over the U.S. political process”). 100

Id. at 287.



community that foreign citizens do not have a constitutional right to

participate in, and thus may be excluded from, activities of

democratic self-government.”101 Although the court purported to

apply strict scrutiny to the provision, it rejected arguments that it was

seriously over- and under-inclusive as to its alleged purpose of

limiting foreign influence over American politics.102 Ultimately, the

court was convinced that LPRs enjoy a special place in the American

polity that justified affording them what it considered a membership

right.

The Supreme Court affirmed Bluman last term without comment,

thus avoiding the messy task of distinguishing Bluman from Citizens

United, where it had found that corporations have a free speech right

that insulates them from governmental regulation of their

contributions. Corporate non-persons now have more rights in this

arena of First Amendment law than non-citizen persons. The

justification for this departure can only be that the courts have found

campaign contributions to be a membership right, and that

corporations are members, but non-citizens other than LPRs are not.

H. Criminal Procedural Rights

In Wong Wing v. United States, the Court held that a Chinese

national could not be summarily sentenced to one year of hard labor

as a punishment for being in the United States unlawfully.103 The

Court affirmed that non-citizens are entitled to due process, which

prevented imposition of an “infamous punishment” without

indictment and trial by jury.104 Since then, courts have assumed that

“regardless of alienage, those who stand charged with crimes within

the United States are protected by the Fourth, Fifth, and Sixth

Amendments in proceedings overseen by Article III judges and

101

Id. at 288. 102

Id. at 290. 103

163 U.S. 228, 237 (1896). 104

Id.

26 [DECEMBER 2012]


adjudicated by grand juries and jury trials.”105 Indeed, the Court’s

most discussed immigrant rights decision in the last few years is in

the area of criminal procedure: in Padilla v. Kentucky, the Court held

that the failure of a defense attorney to advise his client of the

immigration consequences of a guilty plea could constitute ineffective

assistance, in violation of the Sixth Amendment right to counsel.106

Non-citizens’ enjoyment of core criminal procedural protections

does not mean that they are on equal footing with citizens in criminal

cases. Rather, at the ground level, the intersection of the immigration

and criminal enforcement regimes operates in a variety of ways to

disadvantage non-citizens.107 Moreover, one of the most basic

criminal procedural rights—the Fourth Amendment protection against

unreasonable searches and seizures—is qualified for non-citizens. For

many years, the Court assumed that non-citizens were covered to the

same extent as citizens.108 However, in Verdugo-Urquidez v. INS the

Court held that the Fourth Amendment did not apply to a search by

American authorities of the Mexican residence of a Mexican

citizen.109 Verdugo-Urquidez’s Mexican home had been raided by

American authorities after he was transported by Mexican police to

the United States for prosecution.110 Confronted with the fact that the

105

Ingrid V. Eagly, Prosecuting Immigration, 104 NW. U. L. REV. 1281, 1292–

93 (2010). 106

Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). 107

See Gabriel J. Chin, Illegal Entry as Crime, Deportation as Punishment:

Immigration Status and the Criminal Process, 58 UCLA L. REV. 1417, 1423–33

(2011); Eagly, supra note 105, at 1304–19. The simultaneous advancement of

criminal and deportation proceedings can mean that in practice, non-citizens get

the lowest common denominator for procedural rights. For example, although,

in a criminal case, non-citizens would generally be entitled like all defendants to

release on bond, many non-citizens are subject to mandatory detention in

removal proceedings, meaning that even when they are released from state

criminal custody, they can still end up in federal criminal custody. Eagly, supra

note 105, at 1306. This dynamic plays out in several other procedural areas:

Miranda warnings, search and seizure, and sentencing. Id. at 1308–19. 108

See Almeida–Sanchez v. United States, 413 U.S. 266, 273 (1973). 109

494 U.S. 259, 274–75 (1990). 110

Id. at 262.



Fourth Amendment applies, on its face, to “the people,” the Court

engaged in some gymnastics to find Mr. Verdugo-Urquidez outside

its protection:

“the people” protected by the Fourth Amendment,

and by the First and Second Amendments, and to

whom rights and powers are reserved in the Ninth

and Tenth Amendments, refers to a class of persons

who are part of a national community or who have

otherwise developed sufficient connection with this

country to be considered part of that community.111

For the first time, the Court seemed to be saying that the Fourth

Amendment, long considered a basic right of personhood, was a

membership right, restricted to persons with “sufficient connection”

to the United States. This wasn’t the first time the Court had held that

“the People” is a term of art. In the now infamous Dred Scott case,112

Justice Taney found that the words “people of the United States” and

“citizens” were synonymous terms: “They both describe the political

body who, according to our republican institutions, form the

sovereignty, and who hold the power and conduct the government

through their representatives.”113 Since African Americans were not

originally part of this “People,” they “had no rights which the white

man is bound to respect.”114 Verdugo-Urquidez and Dred Scott both

use communitarian logic to limit the rights of putative outsiders.

I. Due Process

It has been clear since Wong Wing that non-citizens are entitled to

due process. However, Wong Wing involved a criminal punishment

111

Id. at 265. See also United States v. Esparza-Mendoza, 265 F. Supp. 2d

1254, 1271 (D. Utah 2003), aff’d on other grounds, 386 F. 3d 953 (10th Cir.

2004) (holding that “previously deported alien felons” are unprotected by the

Fourth Amendment, because they are not part of “the People”). 112

Scott v. Sandford, 60 U.S. 393 (1857). 113

Id. at 404. 114

Id. at 407.

28 [DECEMBER 2012]


for being unlawfully in the United States; in cases since, the Court has

been careful to insist that deportation is not a criminal punishment.115

Thus, the protections discussed above for non-citizens in criminal

proceedings do not necessarily apply in removal proceedings. For

example, in INS v. Lopez-Mendoza, the Court held that the

exclusionary rule does not apply to deportation proceedings.116

Overall, the Court has been ambivalent about non-citizens’ due

process rights in removal proceedings, relying at times on the plenary

power doctrine to abdicate any meaningful review.117 This is

particularly the case for non-citizens who are considered to be seeking

admission to the United States. The Immigration and Nationality Act

has separate grounds of removal for persons in the United States who

are “deportable” and for those outside, seeking admission, who are

charged as “inadmissible.”118

In the nineteenth century case, Nishimura Ekiu v. United States,

the Court said that for persons seeking admission, “the decisions of

executive or administrative officers, acting within powers expressly

conferred by congress, are due process of law.”119 Historically, this

115

See INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984); Bridges v.

Wixon, 326 U.S. 135, 147 (1945). 116

Lopez-Mendoza, 468 U.S. at 1050. But see Bustos-Torres v. INS, 898 F.2d

1053, 1057 (5th Cir. 1990) (illegally coerced statements can be suppressed in

deportation proceedings under the Fifth Amendment Due Process Clause);

Matter of Garcia, 17 I&N Dec. 319, 321 (BIA 1980) (same). 117

See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953);

Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952); United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950); Fong Yue Ting v. United

States, 149 U.S. 698, 705–06 (1893); Nishimura Ekiu v. United States, 142 U.S.

651, 659 (1892). 118

Compare 8 U.S.C. § 1182 (grounds of inadmissibility, which until 1996

were called the grounds of “excludability”), with 8 U.S.C. § 1227 (grounds of

deportability). 119

142 U.S. 651, 660 (1892). Similarly, during the Cold War the Court upheld

a procedure that denied a hearing to non-citizens excluded based on secret

evidence, stating, “[w]hatever the procedure authorized by Congress is, it is due

process as far as an alien denied entry is concerned.” United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950).



distinction has elevated form over substance, because persons who

have been in the United States for years can still be considered

applicants for admission, as long as they have not been formerly

granted admission. During the Cold War, for example, the Court

upheld the indefinite detention at Ellis Island of a twenty-five-year

resident of the United States who had been excluded without a

hearing based on secret evidence, and who could not be deported back

to his native Romania.120

In contrast, the Court has long held that persons admitted to the

United States must receive due process, at least, before being

deported. In Yamataya v. Fisher, the Court held that due process

barred arbitrary deportations, and entitled non-citizens in deportation

cases to an “opportunity to be heard upon the questions involving

[their] right[s] to be and remain in the United States.”121 Eventually,

the Court held that lawful permanent residents of the United States

must receive due process even when they are in exclusion

proceedings.122

At times, the Court has been willing to engage in a searching

review of the level of due process in removal proceedings.123 It has

held that the Government bears the burden to establish alienage and

deportability by “clear, unequivocal, and convincing evidence.”124

Moreover, the Court has made clear that even persons ordered

deported are entitled to due process. In Zadvydas v. Davis, the Court

held that immigrants cannot be held indefinitely if they cannot be

120

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212–16 (1953). 121

Kaoru Yamataya v. Fisher, 189 U.S. 86, 101 (1903). However, the due

process that Yamataya received was minimal; the Court was unswayed by the

fact that she did not understand English, the language the deportation

proceedings were conducted in. Id. at 102. Any hearing at all, it seemed, would

have satisfied the Court’s minimal threshold for due process in Yamataya. 122

Landon v. Plasencia, 459 U.S. 21, 37 (1982). 123

See, e.g., Bridges v. Wixon, 326 U.S. 135, 154 (1945) (reversing a removal

order obtained based on unsigned, unsworn hearsay statements). 124

Woodby v. INS, 385 U.S. 276, 277 (1966). This stands in contrast to cases

where the non-citizen is an arriving alien, in which the respondent in

proceedings bears the burden of proof. See 8 C.F.R. § 1240.8(b).

30 [DECEMBER 2012]


deported.125 Under Zadvydas, immigrant detainees must receive some

process to regularly evaluate the likelihood of their removal, and if

they cannot be removed in the reasonably foreseeable future, they

must be released.126

Zadvydas stands out as one of the Court’s two most significant

decisions in favor of immigrants’ constitutional rights since the

Burger Court,127 the other being Padilla v. Kentucky. The two

decisions teach that the Court is still willing to enforce immigrants’

basic rights of personhood in the context of criminal procedure and

the quasi-criminal arena of detention.

II. AN EROSION OF IMMIGRANT RIGHTS

The above discussion reveals that the entitlement of immigrants to

rights in this country has never been a clear-cut issue. Whether

immigrants are entitled to rights has always depended on what right is

at issue, and where the immigrant stands in the hierarchy of migrants.

From the beginning, courts considered some rights to be rights of

personhood belonging to everyone; other rights were associated with

membership, and courts have been more likely to afford these to

immigrants who were perceived to be members.

Over time, there have been some important changes in this

calculus. First, the type of immigrants who are considered to be

members has shifted; at one time, any European immigrant who had

expressed an intention to naturalize was arguably a member; today,

persons must satisfy rigid legal requirements in order to achieve

something close to membership—formal LPR status. Second, the

125

533 U.S. 678, 699–700 (2001). Although the Court has held that the

indefinite detention of non-citizens with removal orders would raise serious

constitutional issues, it has rejected the claim that the mandatory detention of

persons in removal proceedings violates due process. See Demore v. Kim, 538

U.S. 510, 531 (2003). 126

Zadvydas, 533 U.S. at 699–700. 127

Zadvydas relied on a theory of constitutional avoidance to interpret the

immigration detention statute narrowly so as not to authorize indefinite

detention if removal is not reasonably foreseeable. Id. at 689–99.



scope of membership rights available to non-citizen members has

changed; today even LPRs cannot assert certain membership rights,

like voting. Third, the boundary between rights of membership and

personhood has shifted so that some rights formerly considered to

belong to all persons, like work, now belong only to members.

Fourth, when given the choice between an individual rights-based

claim and an alternative theory, courts increasingly decide cases on

the alternative theory. Taken together, these changes suggest that

there has been some erosion of immigrant rights.

A. Stricter Membership Rules

Membership is an elastic concept. The preeminent form of

membership in the United States is citizenship, yet at various times at

least some non-citizens have shared in many of the privileges and

rights that we tend to associate with membership. Courts have used

various tests of membership for allocating rights, including entry,

“substantial connection” to the United States, admission as a “lawful

permanent resident,” and intent to naturalize.128 In general, the

immigrants who have fared best have been those deemed to be on a

pathway to citizenship.129

As discussed above, declarant aliens could often vote and serve in

the military. Today the law continues in many ways to privilege

persons on a pathway to citizenship. The clearest way of doing so

now is by becoming an LPR. After five years (three if married to a

citizen), an LPR can naturalize.130 LPRs are privileged over persons

with other immigration statuses in countless ways, from their ability

128

See Verdugo-Urquidez v. INS, 494 U.S. 259, 270, 272 (1990) (suggesting

that constitutional protections like the Fourth Amendment apply to aliens with a

“substantial connection” to the United States); Landon v. Plasencia, 459 U.S. 21,

33 (1982) (LPRs are entitled to due process in exclusion proceedings); Terrace

v. Thompson, 263 U.S. 197, 218–21 (1923) (intending citizenship was a rational

basis for regulating alien property ownership); Kaoru Yamataya v. Fisher, 189

U.S. 86, 101 (1903) (due process entitles persons who have entered the United

States to a hearing prior to deportation). 129

See MOTOMURA, AMERICANS IN WAITING, supra note 20, at 119–23. 130

8 U.S.C. §§ 1427(a), 1430(a).

32 [DECEMBER 2012]


to work and travel,131 to their ability to access government-subsidized

student loans132 and legal aid,133 own property in some states,134 and

make political campaign donations.135

The primary difference between then and now is that in the

nineteenth and early twentieth century, European migrants could

place themselves in the category of future citizens with a simple

expression of intent to naturalize.136 Today the pathway to citizenship

is circumscribed by rigid legal processes: “adjustment of status” or

“consular processing,” which are the means for acquiring a green card

inside or outside the United States, respectively. In contrast to the

relatively straightforward filing of first papers by nineteenth and early

twentieth century declarant aliens, green card applicants today must

navigate an obstacle course of bureaucratic hoops: a preliminary

petition filed by an employer or family member, a long wait for the

relevant “visa category” to “become current,” the payment of multiple

costly fees, the gathering of biometric data, a medical examination,

the filing of a lengthy application along with various affidavits, and in

some cases, additional supplementary forms, depending upon what

bars and grounds of inadmissibility the applicant has unwittingly

triggered over the course of her immigration history.137 On top of all

this, applicants must attend an interview with an official who may

scrutinize their most personal relationships.138

131

See Nancy Morawetz, The Invisible Border: Restrictions on Short-Term

Travel by Noncitizens, 21 GEO. IMMIGR. L.J. 201, 205 (2007). 132

See 34 C.F.R. § 668.33(a)(2)(i) (setting forth the immigration requirements

for participants in a student financial assistance program authorized by Title IV

of the Higher Education Act of 1965). 133

See Geoffrey Heeren, Illegal Aid: Legal Assistance to Immigrants in the

United States, 33 CARDOZO L. REV. 619 (2011). 134

See Tirres, supra note 86. 135

See 2 U.S.C. § 441e (prohibiting foreign nationals other than LPRs from

making campaign donations). 136

MOTOMURA, AMERICANS IN WAITING, supra note 20, at 115–16. 137

See 8 U.S.C. §§ 1245.2 (application); 1245.5 (medical examination). 138

See 8 U.S.C. § 1245.6.



At one time, virtually any European non-citizen could share in a

wide range of membership rights, especially if the individual had filed

first papers. Today, LPRs who have run a bureaucratic gauntlet are

the closest thing to non-citizen members. As the ministerial and

substantive requirements for adjustment of status and consular

processing tighten, it has become more difficult than ever before to

become a non-citizen member.

B. Narrowing Membership Rights for Non-Citizens

There are some rights that are restricted today to citizens that

were formerly available to at least some non-citizen immigrants. The

most prominent instance is voting, which was commonly allowed to

declarant aliens up until the early twentieth century. But there are

other examples of the declining membership rights of non-citizens

who have achieved quasi-member status. For example, 1996 welfare

reforms limited the ability of LPRs to obtain federal welfare

benefits.139

During the Burger Court era, equal protection jurisprudence

provided a relatively sturdy backstop for the rights of LPRs. During

the 1970s and 1980s, the Court struck down a variety of state laws

that limited lawful immigrants’ access to the type of privileges and

services that we tend to associate with membership, such as

occupational licensing, welfare, and education.140 However, the Court

drew the line at cases involving some political function, such as state

elective office positions, the state police, public school teachers, and

deputy probation officers.141 In these cases, the Court approved of

139

“Qualified aliens” like LPRs now can only receive food stamps and

Medicaid if they have resided in the United States for five years unless they

have worked in the United States for forty qualifying quarters or entered the

United States prior to 1996. See Personal Responsibility and Work Opportunity

Reconciliation Act, Pub. L. No. 104-193, §§ 1612–13, 110 Stat. 2105 (1996). 140


See Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Ambach v. Norwick,

441 U.S. 68, 73–75 (1979); Foley v. Connelie, 435 U.S. 291 (1978); Sugarman

v. Dougall, 413 U.S. 634, 647 (1973).

34 [DECEMBER 2012]


states’ efforts to limit LPRs’ ability to participate in aspects of civil

society.

In the late nineteenth and early twentieth centuries, non-citizens

who were considered en route to citizenship enjoyed rights that were

relatively coterminous with those of citizens.142 Today, LPRs—the

closest thing to a non-citizen “member”— are limited from voting,

receiving certain public benefits, and serving in positions with a

“political function.” It is not only harder today for a non-citizen to

become a member of civil society; there are certain rights of

citizenship that non-citizens will never enjoy.

C. Narrowing Rights of Personhood

Courts have long recognized that regardless of their legal status,

non-citizens have core rights of personhood in the United States. The

Supreme Court’s relatively recent rulings in Padilla v. Kentucky and

Zadvydas v. Davis reaffirm that even the least popular immigrants—

so-called “criminal aliens”—are entitled to powerful procedural

protections like the right to counsel in criminal cases and the right to

review of their civil immigration detention.143 For the most part, non-

citizens’ procedural rights are robust. Indeed, if there is a bright spot

in the contemporary Court’s immigrant rights jurisprudence, it seems

to be in the area of procedural rights in criminal and quasi-criminal

contexts.

Yet even in the area of criminal procedure, membership can

matter. Verdugo-Urquidez provides that the Fourth Amendment—

once assumed to belong to every person—may not apply to non-

citizens who lack a substantial connection to the United States.144 In

civil law, there are more examples of areas where rights that were

once assumed to belong to all persons are now substantially qualified.

At the time of Yick Wo and Truax, work seemed like a fundamental

142

See Part I.A–B. 143

Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010); Zadvydas v. Davis, 533

U.S. 678, 699–700 (2001). 144

Verdugo-Urquidez v. INS, 494 U.S. 259, 274–75 (1990).



right that ought to belong to everyone. Today, there is little question

that work is a right of membership, restricted to certain privileged

classes of non-citizens.145 The boundary between rights of personhood

and membership has also shifted in the area of free speech; AADC and

Bluman suggest that non-LPRs might have less First Amendment

rights in certain contexts than LPRs.

Today it is harder than ever for a non-citizen to achieve

something close to membership status. Yet once a non-citizen has

secured LPR status, she will enjoy fewer membership rights than

during earlier eras. Moreover, non-citizens unable to become LPRs

cannot assume today that they can rely on strong rights of

personhood. Although procedural protections for unauthorized

migrants remain mostly strong, modern cases allow government to

regulate their employment, limit their speech, and, in some cases,

even search them without probable cause.146

D. Increasingly Popular Substitutes for Individual Rights

Professor Hiroshi Motomura has remarked that ambivalence

about immigration has led to a tendency for courts and agencies to

uphold immigrants’ rights “indirectly and obliquely.”147 Given

immigrants’ tenuous status as members of civil society, court rulings

that they enjoy membership rights are likely to generate controversy.

Many persons do not agree that immigrants, especially unauthorized

145

See infra Part I.E. 146

See infra Part I.E, G, H. 147

Hiroshi Motomura, The Rights of Others: Legal Claims and Immigration

Outside the Law, 59 DUKE L.J. 1723, 1727 (2010) [hereinafter Motomura,

Rights of Others]. Professor Hiroshi Motomura identifies five strategies that

have allowed unauthorized migrants to indirectly assert rights: “institutional

competence” arguments that the wrong decision-maker acted; “comparative

culpability” arguments that another actor has done something worse than the

unauthorized migrant’s immigration violation; “citizen proxy” arguments that

mistreatment of an unauthorized migrant will impact a citizen’s rights; applying

a “procedural surrogate” for a constitutional right, such as a traditional discovery

rule; and applying a “phantom norm,” a regulatory or statutory right in the

absence of a constitutional one. Id. at 1726–27.

36 [DECEMBER 2012]


ones, should have equal access to the privileges and benefits of

membership. However, many would agree with the principle that the

federal government, not states, should have exclusive power over

immigration. Still more persons would concede that agencies should

treat persons—even undocumented immigrants—rationally. These

two themes—federalism and agency skepticism—have become

powerful substitutes in recent years for immigrant rights like the right

to equal protection. Federalism and agency skepticism allow

immigrants to win cases by litigating in the safer context of federal

rights and responsibilities, rather than immigrant rights.

1. Federalism

Courts have often avoided the question of immigrant rights by

finding that non-citizens are the third party beneficiaries of other

rights holders, like citizens.148 Similarly, in recent years, non-citizens

have repeatedly benefited from federal rights in cases where courts

have invalidated state immigration legislation because it is preempted

by the federal government’s exclusive right to regulate immigration.

State efforts to regulate immigration are longstanding; indeed, until

the late nineteenth century, virtually all immigration law was state

law.149 However, since Chae Chan Ping, the Court has held that

148

For an example of a case where a non-citizen was able to essentially raise a

citizen proxy claim, see Oyama v. California, 332 U.S. 633, 647 (1948) (finding

that a California statute barring the transfer of land to persons “ineligible for

citizenship” was unconstitutional as applied to the owner of the property, a

minor U.S. citizen whose parent was ineligible for citizenship by virtue of his

Japanese ancestry and had paid for the property). For a discussion of citizen

proxy claims, see Motomura, Rights of Others, supra note 147, at 1751–55

(noting various ways in which non-citizens have raised citizen proxy claims,

such as in deportation cases where non-citizens can seek discretionary relief

from removal if they can show hardship to a U.S. citizen relative, or in labor law

cases where judges have sometimes reasoned that citizen workers would be

prejudiced by a weakening of employment protections for unauthorized

migrants). 149

See Gerald L. Neuman, The Lost Century of American Immigration Law

(1776–1875), 93 COLUM. L. REV. 1833, 1835–84 (1993).



immigration is a federal matter.150 That has not stopped states from

endeavoring to regulate immigration, although they have had minimal

success in their efforts to do so. The Burger Court struck down an

extraordinary amount of state legislation on equal protection

grounds.151 In at least two of these cases, the plaintiffs also raised

preemption arguments, but the Burger Court ignored these in favor of

its preferred equal protection test.152 The advantage of equal

protection over preemption as a litigation strategy during this era is

borne out by the fact that the principal immigration preemption case

of the time, De Canas v. Bica, came out in favor of the state.153

The Court has since made an about-face. Neither the Rehnquist

nor Roberts Court has invalidated a single piece of immigration

legislation on equal protection grounds. In the last equal protection

challenge to immigration legislation that the Court decided, it ruled

against the non-citizen, who had challenged a provision of federal

citizenship law that discriminated against children born out-of-

wedlock to citizen fathers. The law required these children to meet

more onerous requirements for citizenship than they would have

faced had their mother been a citizen.154 Of course, Nguyen v. INS

concerned gender discrimination, meaning that the Court at least

purported to apply heightened scrutiny (which it found the statute

satisfied), and left unresolved the question whether “some lesser

degree of scrutiny pertains because the statute implicates Congress’

immigration and naturalization power.”155 In 2011, the challengers in

Flores-Villar v. United States resurrected that question in a challenge

to a different citizenship provision, and the Court again failed to

decide it—this time because no majority of the Court could agree on a

150

Chae Chan Ping v. United States, 130 U.S. 581, 605–07 (1889). 151


See Plyler v. Doe, 457 U.S. 202, 208–09, 230 (1982); Sugarman v. Dougall,

413 U.S. 634, 646 (1973). 153

DeCanas v. Bica, 424 U.S. 351, 356 (1976). 154

Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 73 (2001). 155

Id. at 61.

38 [DECEMBER 2012]


coherent approach for resolving the case, meaning that it affirmed the

lower court decision without issuing any opinion at all.156

Flores-Villar reveals that the state of equal protection review in

citizenship cases is embattled. Although it’s unclear if this

ambivalence extends to immigration cases in general, the sheer length

of time since the Court has decided an equal protection case in favor

of a non-citizen suggests a shift away from immigrant equal

protection. On the other hand, it has become increasingly common for

courts to find that state immigration legislation is preempted by

federal law. In the past several years, a growing number of states and

localities have enacted legislation designed to address a perceived

problem with illegal immigration.157 Advocates and the federal

government have successfully challenged many of these statutes on

preemption grounds, most prominently the Arizona legislation.158

Arizona’s Support Our Law Enforcement and Safe

Neighborhoods Act, or Senate Bill 1070, was passed as part of the

State’s strategy of “attrition through enforcement,” an effort to curb

the undocumented population in Arizona by making life unpleasant

156

Flores-Villar v. United States, 131 S. Ct. 2312 (2011). 157

The surge began in 2007, when state legislators passed 252 laws relating to

immigration, more than two-and-a-half times the ninety bills passed the year

before, and more than five times as many as the forty-five laws passed in 2005.

NATIONAL CONFERENCE OF STATE LEGISLATORS, IMMIGRANT POLICY PROJECT,

2012 IMMIGRATION-RELATED LAWS AND RESOLUTIONS IN THE STATES 2 (2012),

available at

http://www.ncsl.org/Portals/1/Documents/immig/2012ImmigrationReportJuly.p

df (last visited Aug. 17, 2012) [hereinafter IMMIGRANT POLICY PROJECT]. From

2007 through the first half of 2012, states have passed an astonishing 1,716

immigration laws. Id. 158

See Arizona v. United States, 132 S. Ct. 2492 (2012); Villas at Parkside

Partners v. City of Farmers Branch, 675 F.3d 802 (5th Cir. 2012); Lozano v.

City of Hazleton, 620 F.3d 170 (3d Cir. 2010), cert. granted and vacated by

City of Hazleton, Pa. v. Lozano, 131 S. Ct. 2958 (2011) (for further

consideration in light of Chamber of Commerce of United States of America v.

Whiting, 131 S. Ct. 1968 (2011)); Garrett v. City of Escondido, 465 F. Supp. 2d

1043, 1054–57 (S.D. Cal. 2006).



for them.159 In 2012, the Supreme Court considered the

constitutionality of four provisions of Senate Bill 1070: section 2(b),

which requires officers to check an arrested person’s immigration

status with the federal government if they have reasonable suspicion

that the person is undocumented; section 3, making failure to comply

with federal alien-registration requirements a state misdemeanor;

section 5, making it a misdemeanor for an unauthorized alien to seek

or engage in work in the State; and section 6 authorizing officers to

arrest without a warrant a person who the officer has probable cause

to believe is subject to removal.160 The Supreme Court found that

sections 3, 5 and 6 were preempted by federal law but reversed the

lower court’s injunction against section 2(b), remanding the case for

additional findings as to that provision.161

Senate Bill 1070, of course, does not just raise preemption

concerns. Race, ethnicity, language, and national origin are the

inevitable proxies that Arizona law enforcement will use to decide

whether to detain, question, and arrest the likely Latino suspects

under the law. Targeting persons based on these invidious criteria

raises serious issues under the Fourth Amendment and the Equal

Protection Clause.162 Even just subjecting persons to detention for the

purpose of assessing their citizenship raises due process and other

constitutional concerns.163 Senate Bill 1070 clearly implicates the

159

See Arizona, 132 S. Ct. at 2497. 160

Id. at 2497–98. 161

Id. at 2510 162

See Complaint for Declaratory and Injunctive Relief, Friendly House et al.

v. Whiting et al., No. 2:10-cv-01061-MEA (D. Ariz. May 17, 2010) [hereinafter

Friendly House Complaint] (challenging SB 1070 on Supremacy Clause, First

Amendment, Fourth Amendment, and Equal Protection grounds). Challenges

that argue that state or local immigration laws discriminate against persons

based on their race or national origin face a high threshold: the requirement

under the Equal Protection Clause is that the plaintiff show actual discriminatory

intent, rather than mere disparate impact. See Motomura, Rights of Others, supra

note 147, at 1734–35. 163

See Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001) (holding that as a

matter of due process, civil detention requires a “sufficiently strong special

40 [DECEMBER 2012]


rights of non-citizens, yet nowhere in the decision are their rights

mentioned.

Of course, the plaintiff in Arizona was the federal government,

which is perhaps less interested in raising immigrant rights than in

asserting its own power over the states. Moreover, the government

brought a facial challenge seeking to enjoin the statute before it went

into effect, making it impossible to consider facts showing that the

statute operates to discriminate against persons based on their race or

other invidious criteria.164 In other cases, advocacy groups continue

to bring equal protection claims, with some modest successes.

However, examination of these cases underscores that the playing

field has changed significantly since the days of the Burger Court.

For example, in Dandamudi v. Tisch,165 a group of non-LPR non-

citizens challenged a New York licensing statute providing that only

non-citizens who were LPRs would be granted pharmacy licenses.

The plaintiffs raised both preemption and equal protection challenges,

and the court upheld both. However, it went out of its way to explain

that the preemption claim was stronger and that ordinarily it would

not address an equal protection claim if the case could be resolved on

preemption grounds.166 It felt constrained to address the equal

protection claim only because a provision of the North American Free

Trade Agreement (NAFTA) deprived some of the plaintiffs of

standing to challenge the state law.167 The Second Circuit’s

justification” to outweigh the deprivation of liberty, as well as “strong

procedural protections”). 164

On the other hand, the federal government might have argued, as the

plaintiffs in Friendly House et al. v. Whiting et al. did, that the legislative history

and circumstances surrounding enactment reflected an intent to discriminate

against Hispanic persons. See Friendly House Complaint, supra note 162,

¶¶ 67–73. This strategy was attempted unsuccessfully in Lozano v. City of

Hazleton, 496 F. Supp. 2d 477, 540 (M.D. Pa. 2007), aff’d in part, vacated in

part, 620 F.3d 170 (3d Cir. 2010) cert. granted, judgment vacated sub nom. City

of Hazleton, Pa. v. Lozano, 131 S. Ct. 2958 (2011). 165

686 F.3d 66 (2d Cir. 2012). 166

Id. at 79–81. 167

Id. at 81.



admonition against deciding equal protection claims when preemption

theory resolves the case stands in contrast to cases like Plyler and

Sugarman, where the Court chose to decide the case on equal

protection rather than preemption grounds.168

Today it is clear to most litigators that preemption is likely to be

more successful as a strategy than equal protection. For example, in

Equal Access Education v. Merten, the plaintiffs didn’t even raise an

equal protection challenge to a Virginia Attorney General decision

barring higher education for undocumented students; they rested their

argument on preemption grounds.169 In recent litigation concerning a

section of Alabama law requiring verification of the immigration

status of enrolling students, both the federal government and private

plaintiffs brought suit, and the federal government sought to have the

case decided only on preemption grounds.170 However, since Plyler v.

Doe was clearly controlling precedent, the court upheld the private

plaintiffs’ equal protection claim—a rare example of a recent case

affirming immigrants’ equal protection rights.171

Explanations for equal protection doctrine’s fading prominence in

recent jurisprudence compared to preemption will be explored more

in Part III. For now it is enough to reiterate the larger trend: the

Burger Court issued seven decisions upholding immigrant equal

protection rights; the Rehnquist and Roberts Courts have issued

none.172 Litigators understand that the best way today to challenge

state legislation is not to assert immigrant rights, but federal rights.

168


305 F. Supp. 2d 585 (E.D. Va. 2004). 170

See United States v. Alabama, Nos. 11–14532, 11–14674, 2012 WL

3553503, *20 (Aug. 20, 2012). 171

Hispanic Interest Coal. of Ala. v. Governor of Ala., Nos. 11–14535, 11–

14675, 2012 WL 3553613, *10 (11th Cir. Aug. 20, 2012). 172

See supra note 11.

42 [DECEMBER 2012]


2. Agency Skepticism

When federal rather than state action is at issue, non-citizens

also seem less likely to win equal protection claims now than

during the era of the Burger Court,173

although the shift is

mitigated somewhat by the growing receptivity of courts to claims

under administrative law. This shift is epitomized by two cases, the

Second Circuit’s 1976 decision in Francis v. INS and the Supreme

Court’s decision last year in Judulang v. Holder.174

The two cases

address the same issue, but in a radically different way.

In Francis, the Second Circuit considered an anomaly of

immigration law: courts regularly granted discretionary relief

called “Section 212(c) waivers” to deportable LPRs who had

traveled abroad, but, because of the interstices of immigration law,

refused to do so for those who had never left the United States.175

The court found that privileging travelers in this way was

irrational, and thus failed to satisfy even the most minimal level of

173

Although the Burger Court issued most of its decisions concerning non-

citizens’ equal protection rights in state cases, it did suggest in two cases that it

would invalidate discriminatory federal action in egregious cases involving non-

citizens: Hampton v. Mow Sun Wong, 426 U.S. 88, 90 (1976) and Examining

Board v. Flores de Otero, 426 U.S. 572 (1976). See supra note 63. 174

Judulang v. Holder, 132 S. Ct. 476 (2011); Francis v. INS, 532 F.2d 268 (2d

Cir. 1976). 175

Section 212 of the Immigration and Nationality Act (INA) sets out the

categories of persons who are “inadmissible” (formerly “excludable”) from the

United States. See 8 U.S.C. § 1182. A separate provision sets out the grounds for

deporting persons already present in the United States. See 8 U.S.C. § 1227. The

now defunct Section 212(c) waiver, which Congress repealed in 1996,

“permitted the Attorney General to grant discretionary relief to an excludable

alien, if the alien had lawfully resided in the United States for at least seven

years before temporarily leaving the country and if the alien was not excludable

on one of two specified grounds.” Judulang, 132 S. Ct. at 477. Since the statute,

by its terms, only applied to the grounds of exclusion, not the grounds of

deportability, the immigration agency sometimes only allowed persons charged

with exclusion to apply for the waiver, creating the anomaly at issue in Francis.

For more in depth discussion of the history of the waiver, see infra Part V.B.



equal protection review.176

The Board of Immigration Appeals

adopted the Second Circuit’s holding nationwide177

and the

Francis holding was essentially the law of the land until the Board,

decades later, modified its eligibility criteria for 212(c) waivers in

a way that resurrected the Francis problem.178

Thus, last year the

Supreme Court came to consider an issue that most thought had

been resolved by a prior generation.

In Judulang, the Court reached the same result as the Second

Circuit in Francis, but its reasoning reveals a dramatically changed

judicial culture. The Supreme Court barely even mentioned equal

protection; it based its decision on the APA.179

On one hand, this

might be viewed as a simple application of the constitutional

avoidance principles set out by Justice Brandeis in Ashwander v

Tennessee Valley Authority: courts should not decide constitutional

claims unless absolutely necessary.180

However, it is odd that

Judulang is the first time that the APA issue has come to the fore

in this context, given the extent of litigation on the issue. The APA

existed at the time of Francis and during the following decades,

but throughout this time, equal protection was the lens through

which litigators and courts viewed the issue, not the APA. It is

possible that the immigration attorneys who litigated these cases

were poorly versed in administrative law. But more likely,

something has changed in the law to make the APA a more

attractive alternative to equal protection than it was at the time of

Francis. In fact, there is much reason to believe that this is the

case—that APA review has become more robust, even as equal

protection review has weakened.181

176

Francis, 532 F.2d at 273. 177

Matter of Silva, 16 I. & N. Dec. 26 (1976). 178

See Matter of Blake, 23 I. & N. Dec. 722, 728 (2005); Matter of Brieva–

Perez, 23 I. & N. Dec. 766, 772–773 (2005). 179

Judulang v. Holder, 132 S. Ct. 476, 484 (2011). 180

297 U.S. 288, 347–48 (1936) (Brandeis concurring). 181

See infra Part IV.

44 [DECEMBER 2012]


The APA governs both formal agency rulemaking and agency

adjudication, and sets out a process for judicial review of both.182

Courts can reverse agency policies that are “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.”183

The meaning of this standard has shifted over the years and there is

now a growing emphasis on “reasoned decision-making,” with the

Court requiring that the agency’s process “be logical and

rational.”184

As Justice Kagan pointed out in Judulang, that was

not the case for the Board’s confusing “comparability test” for

assessing eligibility for a 212(c) waiver.185

Judulang is perhaps most remarkable for what it did not do.

Rather than follow the 1976 Francis decision affirming that

immigrants have a right to equal protection, it rebuked the

immigration bureaucracy for failing to meet APA standards of

rationality. This shift should come as no surprise; after Francis, the

circuit courts have rejected similar equal protection claims in every

other context in which they have been raised.186

On the other hand,

lower courts have been increasingly willing to reverse agency

action that they perceive as irrational.

Consider the immigration jurisprudence of Judge Richard

Posner, one of the most influential circuit court judges. In

182

See Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents,

89 TEX. L. REV. 499, 505–06 (2011). 183

5 U.S.C. § 706(2)(A). 184

Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374–75

(1998). 185


See Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th Cir. 2009) (en banc);

Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir 2008); Vue v. Gonzales, 496

F.3d 858, 860 (8th Cir. 2007); Dung Tri Vo v. Gonzales, 482 F.3d 363 (5th Cir.

2007); Caroleo v. Gonzales, 476 F.3d 158, 168 (3d Cir. 2007); Valere v.

Gonzales, 473 F.3d 757, 762 (7th Cir. 2007); Kim v. Gonzales, 468 F.3d 58, 62

(1st Cir. 2006); LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998); Komarenko v.

INS, 35 F.3d 432 (9th Cir.1994). But see Blake v. Carbone, 489 F.3d 88, 101–05

(2d Cir. 2007) (adhering to the Second Circuit’s decision in Francis).



LaGuerre v. Reno, Judge Posner rejected an equal protection

challenge along the same lines as the Francis claim. The challenge

concerned a provision of a 1996 reform that barred 212(c) waivers

for non-citizens convicted of certain drug-related offenses who

were in deportation proceedings but which did not bar the waiver

for aliens charged with exclusion on the basis of the same

convictions.187

Faced with the seeming irrationality of treating

LPRs differently depending on whether they had left the country or

stayed put, Judge Posner invented a justification: the different

treatment could be a “carrot” to encourage deportable LPRs to

leave voluntarily.188

Ultimately, the rationale is facile; when LPRs

leave the United States, they are not generally held at bay outside

if they are deemed inadmissible; they are placed on return into

“deferred inspection” and then removal proceedings begin inside

the United States.189

These proceedings can continue for years after

their reentry, just as would be the case if they had never left and

had been apprehended and placed in deportation proceedings. If

they end up losing, “inadmissible” non-citizens are removed at

government expense, at the same cost as if they had never left.

There is no cost savings to the government, in other words, in

encouraging deportable LPRs to travel outside the United States.

Yet, regardless of the flaws in this justification, it has become

popular with other circuit courts, including the entire Ninth Circuit,

sitting en banc.190

187

LaGuerre, 164 F.3d at 1037. 188

Id. at 1041. 189

Technically, the immigration act does allow for removal proceedings to be

conducted for persons held in foreign contiguous territory, 8 U.S.C. § 1225, but

there are no immigration courts outside the United States. Thus, Customs and

Border Protection officers typically “defer inspection” of LPRs with criminal

convictions until they obtain certified statements of disposition for those

convictions. See 8 C.F.R. §§ 235.2; 1235.2. After review of those dispositions,

officers may issue a Notice to Appear for removal proceedings at an

immigration court inside the United States. See C.F.R. §§ 239.1; 1239.1. 190

See Abebe, 554 F.3d at 1207.

46 [DECEMBER 2012]


Despite Judge Posner’s skepticism of equal protection claims

like LaGuerre’s, he often rules in favor of non-citizens, especially

in asylum cases. An examination of Judge Posner’s immigration

decisions during the ten-year period from 2002 through 2011

reveals that he ruled in favor of twice as many non-citizen

petitioners as he ruled against. However, only three decisions

could be even remotely characterized as finding that the non-

citizen’s “rights” were in some sense violated, and none of these

involved constitutional claims.191

In fact, Judge Posner often

refused to consider constitutional arguments when the issue could

be given a more pedestrian characterization.192

In contrast, all

thirty-four of the pro-immigrant decisions during this time period

contained language criticizing the rationality of the government

actors, often very harshly.193

Judge Posner’s contempt for the

immigration agency appears to be so great that even when he ruled

191

See Samirah v. Holder, 627 F.3d 652, 655–65 (7th Cir. 2010) (finding that

the government was required to admit a non-citizen applicant for adjustment of

status who had left the United States after the government had granted him

advance parole to leave and reenter); Muhur v. Ashcroft, 382 F.3d 653, 655 (7th

Cir. 2004) (granting the petitioner’s motion for attorneys fees under the Equal

Access to Justice Act because the petitioner was the prevailing party in her

appeal and the government’s position was not substantially justified); Miljkovic

v. Ashcroft, 366 F.3d 580, 583–84 (7th Cir. 2004) (granting a motion to add the

petitioner’s wife to a petition for review because the court found that she was a

party and the omission of her name was in the nature of a motion to correct a

clerical error). 192

See, e.g., Subhan v. Ashcroft, 383 F.3d 591, 595–96 (7th Cir. 2004)

(refusing to consider a due process claim, but ruling in the non-citizen’s favor on

statutory and administrative law grounds). 193

Consider, for example, Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir.

2004), where in response to Judge Posner’s scathing opinion, Judge Evans filed

a concurrence “to express my concern, and growing unease, with what I see as a

recent trend by this court to be unnecessarily critical of the work product

produced by immigration judges who have the unenviable duty of adjudicating

these difficult cases in the first instance.” Id. at 560.



in favor of the government, he still regularly criticized the

agency’s rationality in some way.194

Judulang and Judge Posner’s influential immigration

jurisprudence reveal a growing movement toward closer scrutiny

of the immigration agency. But this scrutiny rarely if ever takes the

form of courts examining whether the agency has trampled on

immigrant rights, other than a generalized right to a fair hearing.

Rather, courts increasingly draw on APA and other administrative

law principles to probe the rationality of agency action.

III. WHY THE SHIFT MIGHT HAVE HAPPENED

The multi-faceted changes detailed above—from restrictions

on non-citizen voting to changing attitudes about work—no doubt

have complex and varied causes. However, it is possible to suggest

some reasons for one of the changes outlined above: the

jurisprudential shift away from the Burger Court’s heyday for

immigrant equal protection. First, there have been substantial

changes in the Court’s doctrine. Over the past several decades, a

more conservative Court has narrowly interpreted equal protection

law and rights claims in general, significantly transforming the

state of American constitutional law in a way that makes it more

difficult for non-citizens to prevail on individual rights claims.195

Lawyers have no doubt responded to this shift by searching for

alternative theories, and their success has led to more and more

positive jurisprudence in these newer areas than in the arena of

individual rights.

194

See Gonzales-Balderas v. Holder, 597 F.3d 869 (7th Cir. 2010); Derezinski

v. Mukasey, 516 F.3d 619 (7th Cir. 2007); Djouma v. Gonzales, 429 F.3d 685

(7th Cir. 2005); Mei v. Ashcroft, 393 F.3d 737 (7th Cir. 2004); Ahmed v.

Ashcroft, 388 F.3d 247 (7th Cir. 2004). 195

See Adam Liptak, Court Under Roberts Is Most Conservative in Decades,

N.Y. TIMES, July 24, 2010 (discussing empirical analyses showing collectively

that the Roberts Court is more conservative than the Rehnquist or Burger

Courts, both of which were more conservative than the Warren Court).

48 [DECEMBER 2012]


At the same time, the public, policy makers, and the courts

have become increasingly frustrated with illegal immigration and

the perceived incompetence of the immigration agency to stop it.

Interestingly, this frustration has not translated to greater deference

to the states’ efforts to regulate immigration, perhaps because

doing so would weaken the plenary power doctrine that has served

for more than a hundred years as a means of restricting immigrant

rights. It has, however, filtered into court decisions in another way:

an increase in courts’ skepticism of agency competence. This shift

dovetails with other trends in administrative law, such as the

growing power of the APA. All of these changes have made it

easier for non-citizens to prevail in challenges based in federalism

or administrative law than individual rights like equal protection,

as they often did during the Burger Court era.

A. Equal Protection Doctrine

The Court’s interpretation of the Equal Protection Clause has

shifted considerably since Graham v. Richardson. It is now clear,

for example, that discriminatory impact is an insufficient basis for

an equal protection claim; a litigant must show actual

discriminatory motive or purpose.196

It might be inferred from Yick

Wo that a law with a disproportionate impact on a particular

protected class violates equal protection, and, up until 1976, a

number of lower courts had in fact assumed that was the case. That

year, the Court decided Washington v. Davis, in which it

categorically rejected disparate impact as a basis for an equal

protection claim.197

The Court’s decision in Washington v. Davis was

foreshadowed by a decision that Justice Rehnquist wrote not long

after he joined the Court: Jefferson v. Hackney, in which the Court

rejected a de facto discrimination claim in the welfare benefits

196

See Arlington Heights v. Metro. Hous. Corp., 429 U.S. 252, 264–65 (1977). 197

Washington v. Davis, 426 U.S. 229, 239 (1976).



context.198

Justice Rehnquist had restrictive views of individual

rights in general and equal protection in particular,199

and his

influence no doubt contributed over the course of the following

decades to a shift in equal protection doctrine. During the Burger

Court era, Justice Rehnquist dissented in every single one of the

immigration cases that the Court decided on equal protection

grounds.200

As Chief Justice (beginning in 1986), Rehnquist

presided over a sweeping revision of Court doctrine, one that

increased the importance of structural categories like federalism

over the individual rights-based analysis of the Warren and Burger

Courts.201

During that time, equal protection doctrine grew

particularly lean: no new suspect classifications or fundamental

rights were recognized.202

More importantly for this Article, the

Court did not decide a single equal protection case in favor of a

non-citizen—a record that has persisted into the Roberts Court.

The changing composition and doctrine of the Court might

explain why it stopped issuing pro-immigrant equal protection

decisions, but it does not explain why the Court became more

willing to rule in non-citizens’ favor on preemption or

administrative law grounds. After all, former Chief Justice

Rehnquist and some of the other conservative Supreme Court

Justices have strongly favored states’ rights in other areas outside

198

406 U.S. 535, 549–50 (1972). 199

See Erwin Chemerinsky, Assessing Chief Justice William Rehnquist, 154 U.

PA. L. REV. 1331, 1343–54 (2006); David L. Shapiro, Mr. Justice Rehnquist: A

Preliminary Review, 90 HARV. L. REV. 293, 309 (1976). 200

See Bernal v. Fainter, 467 U.S. 216, 228 (1984) (Rehnquist, J., dissenting);

Plyler v. Doe, 457 U.S. 202, 242 (1982) (Burger, J., dissenting); Nyquist v.

Mauclet, 432 U.S. 1, 17 (1977) (Rehnquist, J., dissenting); Examining Bd. of

Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 606 (1976)

(Rehnquist, J., dissenting); In re Griffiths, 413 U.S. 717, 730 (1973) (Burger, J.,

dissenting); Sugarman v. Dougall, 93 S. Ct. 2861 (1973) (Rehnquist, J.,

dissenting). 201

Chemerinsky, supra note 199, at 1342–43. 202

Id.

50 [DECEMBER 2012]


immigration.203

Yet the generally conservative Justice Kennedy

drafted the opinion in Arizona v. United States, and Justice

Rehnquist’s former law clerk, Chief Justice Roberts, joined Justice

Kennedy’s opinion finding that federal law preempted state efforts

to regulate immigration.

Even more remarkably, every single Supreme Court Justice

signed onto the Judulang v. Holder decision finding that the Board

of Immigration Appeals’ standard for discretionary waivers was

arbitrary and capricious in violation of the APA. This is a

significant development given that equal protection challenges to

the discrimination at issue in Judulang failed in seven of eight

circuits to consider the issue.204

The equal protection claim was

before the Court in the case,205

but Judulang’s attorney did not

emphasize it, and the Court barely mentioned it in its opinion.206

Once the playing field was shifted from a question of immigrant

rights to agency competence, the case proved a surprisingly easy

one to win.

B. Popular Opinion

During the 1970s and 1980s, lawmakers, judges, and the public

were all concerned in much the same way as today about the

203

Chemerinsky, supra note 199, at 1360–63; Shapiro, supra note 199, at 294. 204

Compare Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th Cir. 2009) (en

banc); Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir 2008); Falaniko v.

Mukasey, 272 F. App’x 742, 748 (10th Cir. 2008); Vue v. Gonzales, 496 F.3d

858, 860 (8th Cir. 2007); Dung Tri Vo v. Gonzales, 482 F.3d 363 (5th Cir.

2007); Caroleo v. Gonzales, 476 F.3d 158, 168 (3d Cir. 2007) and Kim v.

Gonzales, 468 F.3d 58, 62 (1st Cir. 2006), with Blake v. Carbone, 489 F.3d 88,

101–05 (2d Cir. 2007). 205

See Brief for Petitioner at 51–53, Judulang v. Holder, No. 10-694 (9th Cir.

July 5, 2011). 206

The only place where the Court addresses the equal protection claim that

defined this issue for thirty-five years was in a footnote, in which it expressed

some skepticism about the claim, but noted that it would not fully consider it,

given that the case was being resolved on APA grounds. Judulang v. Holder,

132 S. Ct. 476, 490 n.8 (2011).



creation of a substantial “‘shadow population’ of illegal migrants-

numbering in the millions-within our borders.”207

The prevalence

of the Burger Court’s decisions addressing state efforts to restrict

immigrants’ access to state services is evidence in and of itself that

the dynamic of the time was somewhat similar to that in states like

Arizona and Alabama today. The public was frustrated then with

the government’s failure to enforce the law; even Justice Brennan

referred to “[s]heer incapability or lax enforcement of the laws

barring entry into this country.”208

If there has been a change in the past few decades, it is that

these attitudes have calcified. Despite a series of legal reforms

over the past twenty-five years designed to combat unauthorized

immigration, it seems that an increasing share of the public

perceives the federal government to be ineffective at enforcing

immigration laws in the face of an “invasion” or “flood” of illegal

immigration.209

As disillusionment with federal enforcement has

grown, states have enacted more and more laws relating to

immigration. In 2005, states enacted thirty-nine bills related to

immigration; in the first half of 2012 alone, states have enacted

111 immigration laws.210

There is evidence that even some members of the current

Supreme Court share the public’s disillusionment with federal

enforcement efforts. During the Arizona oral argument, Justice

Kennedy articulated the invasion theory in the form of a thinly-

veiled hypothetical, asking the Solicitor General to presume that

“the State of Arizona has—has a massive emergency, with social

disruption, economic disruption, residents leaving the State

207

Plyler v. Doe, 457 U.S. 202, 218 (1982). For a history of the legal and

cultural category “illegal aliens,” see MAE M. NGAI, IMPOSSIBLE SUBJECTS:

ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA (2004). 208

Plyler, 457 U.S. at 218. 209

See Stephen H. Legomsky, Portraits of the Undocumented Immigrant: A

Dialogue, 44 GA. L. REV. 65, 73–74 (2009). 210

IMMIGRANT POLICY PROJECT, supra note 157, at 2.

52 [DECEMBER 2012]


because of [a] flood of immigrants.”211

At another point, Chief

Justice Roberts echoed popular disdain with the federal

government’s inability to enforce immigration law: “It seems to

me that the Federal Government just doesn’t want to know who’s

here illegally or not.”212

Justice Scalia offered the harshest attack

on the federal government’s failure to enforce immigration law in

his written dissent in the Arizona case, referring contemptuously to

the federal government’s announcement, unrelated to the Arizona

case, that it would exercise its prosecutorial discretion to not

deport certain immigrant youth through its DACA initiative:

Arizona bears the brunt of the country’s illegal

immigration problem. Its citizens feel themselves

under siege by large numbers of illegal immigrants

who invade their property, strain their social

services, and even place their lives in jeopardy.

Federal officials have been unable to remedy the

problem, and indeed have recently shown that they

are unwilling to do so.213

Despite Chief Justice Roberts’ and Justice Kennedy’s personal

opinions of federal enforcement efforts, they, unlike Justice Scalia,

still ruled in the federal government’s favor. The reasons for their

deference to the federal government are mostly well-established

ones: in Arizona, Justice Kennedy wrote at some length about the

connection between immigration and the exclusively federal matter

of foreign relations214

—a connection first made in the Chinese

exclusion case, Chae Chan Ping.215

As we saw in Part I, this

“plenary power” doctrine has been used repeatedly over the years

as a justification for declining to review immigrant rights claims. It

211

Argument Transcript at 61, Arizona v. United States, 132 S. Ct. 2492

(2012). 212

Id. at 50. 213

Arizona, 132 S. Ct. at 2522 (Scalia, J., dissenting). 214

Id. at 2498–2500. 215

Chae Chan Ping v. United States, 130 U.S. 581, 605–06 (1889).



is therefore consistent, in a way, for the Court to grow more

deferential of federal power over states in immigration matters, at

the same time that it is less willing to consider non-citizens’ rights

claims. Preemption allows the Court to affirm the vulnerability of

non-citizens to federal power while still striking down excessive

and politically controversial programs like Arizona’s.

Non-citizens benefit from decisions like Arizona, but the

Court’s rationale could easily be used against them to reject future

immigrant rights-based challenges to federal power. The end result

of the Court’s growing preference for analyses based on federalism

over individual rights claims is a diminution in precedent

concerning individual rights, which over time likely results in a

reduction in the number of rights claims that are raised. There

seems to be a correlation between an increase in federalism-based

decisions and a reduction in individual rights-based decisions, and

perhaps a kind of causal relationship, too, because good lawyers

look not just for good theories, but ones that work. The more that

preemption succeeds, the more lawyers bring such claims and

courts decide them, building momentum for structural claims while

individual rights theories come to a standstill.

C. Administrative Law and Theory

Although the Court ultimately deferred, for the most part, to

the federal government in Arizona, the text of the opinion and oral

argument reveal a profound suspicion of the federal government’s

competency to enforce immigration laws. This skepticism may be

filtering into immigration jurisprudence in other ways, such as the

Court’s decreasing deference to agency action in cases like

Judulang. Judges who think the federal agency is incompetent to

control the borders may be less inclined to think the agency is

competent to adjudicate individual cases.

Agency skepticism in immigration matters dovetails with a

general anti-regulatory trend that has been building steam in recent

54 [DECEMBER 2012]


decades. Early theories of administrative law were sanguine about

administrative agencies: the “expertise” model conceived of

agencies as reliable experts, disciplined by “the knowledge that

comes from specialized experience.”216

However, over time

commentators grew increasingly critical of agencies’ capacity to

trample on individual liberty without adequate processes.217

The

result was the APA, a compromise between New Deal liberals and

conservatives who wanted to radically rein in the new

administrative state.218

The New Dealers may have had the upper hand in 1946, but

over the years since, the APA has evolved into a powerful tool for

resisting regulation. In the decades following enactment of the

APA, courts engaged in increasingly rigorous review of the

evidence supporting agency fact-finding and required additional

due process for agency action implicating property interests.219

They began to evaluate both the process of agency policymaking

and the underlying substance, to assure that agency policy was

rationally related to some legitimate governmental objective.220

Over time, the standard for assessing whether agency action

violates the APA’s injunction against arbitrary and capricious

conduct became increasingly rigorous.221

Today many courts have adopted a very strict version of the

arbitrary and capricious test called the “hard look” doctrine, in

216

See Richard B. Stewart, The Reformation of American Administrative Law,

88 HARV. L. REV. 1667, 1678 (1975). 217

See Robert L. Rabin, Federal Regulation in Historical Perspective, 38

STAN. L. REV. 1189, 1264 (1986). 218

See George B. Shepherd, Fierce Compromise: The Administrative

Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557, 1681

(1996). 219

Stewart, supra note 216, at 1679. 220

Id. at 1679–80; 221

See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and

Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 476 (2003).



which they closely scrutinize the agency’s reasoning.222

Although

originally the arbitrary and capricious standard was modeled after

rational basis equal protection review,223

there can be little doubt

that in their current forms, the APA contains the stricter test. Since

the early 1960s, the Court has held that any conceivable

governmental objective will satisfy equal protection rational basis

review, regardless of whether it was the one that Congress actually

had in mind.224

Under the APA, in contrast, courts look at the

Agency’s record to understand whether its rules are tailored

closely enough to its stated objectives.225

Hard look review

requires that agencies give detailed explanations for their behavior,

consider viable alternatives, explain departures from past practices,

and make policy choices that are reasonable on the merits.226

Under the standard set out in the Supreme Court’s State Farm case,

a court can even reverse agency action where it fails “to consider

an important aspect of the problem”—in other words, where a

reason not weighed by the agency counsels against the policy.227

This is a far more rigorous test of rationality than that used in the

equal protection context.

The growing power of the APA may owe its intellectual roots

to academic doctrines like Public Choice theory and the Law and

Economics movement. Both doctrines utilize economic theory to

analyze legal or political problems, taking as a given that

222

Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2380

(2001); Levy & Glicksman, supra note 182 at 527. 223

See Scott A. Keller, Depoliticizing Judicial Review of Agency Rulemaking,

84 WASH. L. REV. 419, 430 (2009); Jack M. Beermann & Gary Lawson,

Reprocessing Vermont Yankee, 75 GEO. WASH. L. REV. 856, 870 (2007). 224

See Robert W. Bennett, “Mere” Rationality in Constitutional Law: Judicial

Review and Democratic Theory, 67 CAL. L. REV. 1049, 1057–58 (1979). 225

It has become a maxim of administrative law that agency action must stand

or fall based on the agency’s stated objectives, not post-hoc rationalizations. See

SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). 226

Supra note 222. 227

See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983).

56 [DECEMBER 2012]


individuals are rational and self-interested. Public Choice and Law

and Economics are heterogeneous (and sometimes related)

doctrines. The doctrinal nuances of Law and Economics and Public

Choice theory cannot be neatly summarized, and scholars of both

doctrines have deep internal disagreements. However, both have

had considerable impact on judicial review and the legal culture at

large.

Public Choice theory developed between the 1940s and 1960s

as a means of conceptualizing group decision-making through

econometric modeling.228

Modern Public Choice scholarship

developed a pessimistic outlook on the political process,229

and

was often particularly hostile to administrative agencies,

“portraying agency bureaucrats as shirking, self-interested budget-

maximizers who thwart the will of the people and good

government.”230

Some Public Choice scholars attacked

administrative law at its core, arguing against agency delegation.231

228

See, e.g., KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES

(1951); JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF

CONSENT, LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY (1962);

Duncan Black, On the Rationale of Group Decision Making, 56 J. POL. ECON.

23 (1948). Scholars of Public Choice theory extended the economist’s model of

utility maximizing behavior to social choice and interest group politics. See

David A. Skeel, Jr., Public Choice and the Future of Public-Choice-Influenced

Legal Scholarship, 50 VAND. L. REV. 647, 651 (1997). Central to their work was

the conceptualization of “politics as exchange”—the notion that the political

sphere is a market in which voters and representatives, like consumers and

firms, act as if they are rational, maximizing individuals pursuing their self-

interests. See Jim Rossi, Public Choice Theory and the Fragmented Web of the

Contemporary Administrative State, 96 MICH. L. REV. 1746, 1752 (1998). 229

See JERRY L. MASHAW, GREED, CHAOS & GOVERNANCE: USING PUBLIC

CHOICE TO IMPROVE PUBLIC LAW 10–21 (1997). 230

David B. Spence & Frank Cross, A Public Choice Case for the

Administrative State, 89 GEO. L.J. 97, 99 (2000). 231

See DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW

CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993); Peter H.

Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1

(1982). For a public choice argument in favor of delegation, see Jerry L.



In a general way, Public Choice ideas impacted public opinion, the

courts, and policy makers, justifying not only improved due

process in administrative proceedings, but also sweeping

deregulation.232

Law and Economics developed at approximately the same

time, in the early 1960s. Heavily shaped by the early academic

work of Judge Richard Posner, the Chicago School of Law and

Economics contends that the common law is the result of an effort,

conscious or not, to induce efficient outcomes. Like Public

Choice, Law and Economics contributed in important ways to the

deregulatory policy agenda that transformed American society

from the 1970s through the 1990s.233

It is perhaps no accident that one of the most vocal critics of

the immigration bureaucracy is Judge Posner, an important theorist

of the Chicago School of Law and Economics, who also dabbled

somewhat in his early days with Public Choice approaches to

statutory interpretation.234

It is natural for Judge Posner to rail

against the incompetence of the immigration bureaucracy and

irrationality of immigration law because he cut his teeth railing

against agency regulation in general.

Mashaw, Prodelegation: Why Administrators Should Make Political Decisions,

1 J.L. ECON. & ORG. 81 (1985). 232

Thomas W. Merrill, Capture Theory and the Courts: 1967–1983, 72 CHI.-

KENT L. REV. 1039, 1062–68 (1997); Rossi, supra note 228, at 1754. 233

See Richard A. Posner, The Deprofessionalization of Legal Teaching and

Scholarship, 91 MICH. L. REV. 1921, 1925 (1993). For an early history of

deregulation, see Abner J. Mikva, Deregulating Through the Back Door: The

Hard Way to Fight A Revolution, 57 U. CHI. L. REV. 521, 522–38 (1990). For a

discussion of the way in which cost benefit analysis has impeded health and

safety regulation, see FRANK ACKERMAN AND LISA HEINZERLING, PRICELESS:

ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING 24–122

(2004) (arguing that cost benefit analysis relies in many cases on questionable

valuations of invaluable goods like life, health, and environmental quality). 234

Skeel, supra note 228, at 660.

58 [DECEMBER 2012]


Of course, most judges are not Law and Economics or Public

Choice scholars. However, these ideas have not only gained great

currency in the legal academy,235

they have had a broader cultural

impact in the form of general anti-regulatory sentiment and

suspicion of government at all levels.236

Their ascendance is part of

a climate in which judges’ level of agency skepticism and their

willingness to probe the rationality of immigration agency action

through the lens of administrative law has steadily increased. This

is not to say that Law and Economics or Public Choice scholars

themselves even agree on the importance of intrusive agency

review,237

or that most judges are familiar with these theories, but

only that the growth of Law and Economics and Public Choice

theory are part of a general intellectual culture of agency

skepticism.

Although it is impossible to precisely pinpoint the causes of the

shift from the Burger Court’s emphasis on immigrant equal

protection to the emphasis of courts today on federalism and

agency skepticism, we have identified some potential culprits.

Chief Justice Rehnquist presided over a revolution against

individual rights claims in general, and immigrant rights in

particular. Preemption analysis allows courts to affirm federal

power over immigrants at the same time that they strike down

excessive and politically controversial state programs. Agency

skepticism is fueled in part by popular disaffection with the

immigration agency (and government in general), the prestige of

academic doctrines like Public Choice and Law and Economics,

and the growing heft of the APA.

235

See Merrill, supra note 232, at 1068 (noting the ascendency of public

choice theory in the legal academy); Posner, supra note 233, at 1925 (discussing

the impact of Law & Economics). 236

Merrill, supra note 232, at 1053. 237

Id. at 1072 (Public Choice scholars do not agree on more intrusive agency

review).



IV. WHAT HAS BEEN LOST

If non-citizens achieve essentially the same outcome through

preemption or agency skepticism as they would as rights holders,

one might wonder what has been lost. Why do immigrants need

rights if they can reliably enforce the rights of the federal

government with respect to state discrimination, and if courts will

rigorously apply administrative law principles when federal agency

action is at issue?

Immigrant rights matter—for both non-citizens and for society

at large—for a variety of reasons. As a practical matter,

preemption and agency skepticism will do little for immigrants

when discriminatory federal statutes are at issue. Immigrants’

interests will not always converge with federal interests; there may

be times when preemption will work against rather than in favor of

non-citizens. Similarly, agency skepticism may not always work in

favor of non-citizens; pro-immigrant policies are just as susceptible

to challenge under administrative law principles as are anti-

immigrant adjudications. Taken to its logical conclusion, the

rationality mandate might swallow much immigration regulation;

large swaths of immigration law have evolved through decades’

worth of agency memoranda and guidance. This poses the risk of

selective enforcement of the APA rationality mandate, and a future

judiciary might be just as skeptical of pro-immigrant agency

policies as judges are of policies that adversely affect immigrants

today.

More broadly, rights matter because they convey autonomy

and belonging. The United States’ political system was

consciously cultivated to assure an egalitarian civil society, and has

evolved since, albeit in fits and starts, toward greater inclusiveness

rather than exclusivity.238

Thus, important democratic values may

238

See LAWRENCE H. FUCHS, THE AMERICAN KALEIDOSCOPE: RACE,

ETHNICITY, AND THE CIVIC CULTURE 5–6 (1990).

60 [DECEMBER 2012]


be prejudiced by a diminution of rights analysis for a minority

group. A loss in immigrant rights might be a bellwether for a

broader reduction of American rights.

A. Gaps in Federalism

The obvious problem when non-citizens derive their rights from

the federal government is that non-citizens’ interests will not always

converge with the federal government. For example, at the same time

that the Obama administration has fought state anti-immigrant

legislation, it has also stepped up its own enforcement efforts against

so-called “criminal aliens.” The linchpin of this strategy is a program

called “Secure Communities,” under which DHS receives fingerprint

data for persons arrested by local law enforcement; if the arrestee is a

non-citizen, DHS issues a detainer asking that the local agency hold

the arrestee for up to forty-eight hours while DHS arranges to detain

the individual.239 Many states and localities are eager to cooperate

with Secure Communities, but there are also some that have resisted

compliance, like the District of Columbia, Cook County (Chicago),

and San Francisco and Santa Clara counties.240

There are numerous legitimate policy reasons why states and

localities may not wish to cooperate with federal enforcement efforts.

The program may interfere with community policing efforts, making

non-citizens reluctant to come forward to report crimes. Data on

Secure Communities suggests that non-citizens arrested for minor

traffic offenses have born much of the brunt of the program, despite

the fact that it is targeted at non-citizens with serious offenses.241 The

239

Supra note 28. 240

Id. 241

See AMERICAN FRIENDS SERVICE COMMITTEE, PROJECT VOICE NEW

ENGLAND, ET AL., RESTORING COMMUNITY: A NATIONAL COMMUNITY

ADVISORY REPORT ON ICE’S FAILED ‘SECURE COMMUNITIES’ PROGRAM 5

(2011) (finding that less than one quarter of those apprehended through Secure

Communities fell within the category of individuals ICE has defined as its first

priority for removal).



legal authority for DHS detainers is somewhat tenuous,242 and states

and localities may be concerned that they will be subjected to

litigation for holding non-citizens beyond the period necessary for

their criminal sentence or pre-trial detention.243 The loss of the

primary wage earner for a family, often composed in part of U.S.

citizens, typically leaves the family in a state of crisis, and the state

may not want to foot the bill for the family’s welfare afterward.244 For

that matter, the federal government does not even fully reimburse

states and localities for the extra period that they detain non-

citizens.245 In the end, state and local policy makers simply may not

242

8 C.F.R. § 287.7 authorizes certain immigration officials to issue a detainer

and mandates that state and local agencies comply with the detainer for a forty-

eight hour period. As authority for this mandate, it cites two provisions of the

Immigration and Nationality Act: one governing removal of non-citizens, the

other, the powers of immigration officers. Id. at 287.7(a). However, the removal

provision is silent as to the question of detainers. See 8 U.S.C. § 1227. The other

provision, 8 U.S.C. § 1357(d) does authorize the issuance of immigration

detainer to states and localities, but only “[i]n the case of an alien who is

arrested by a . . . State[] or local law enforcement official for a violation of any

law relating to controlled substances.” 8 U.S.C. § 1357(d). Because the

provision only applies on its face to drug cases and fails to reference any time

period for detention, there is an argument that the DHS regulation is ultra vires.

Of course the risk of making an argument of this type is that Congress will

respond by enacting a statute providing for broader authority. 243

See, e.g., Brian Bennett, Program Ensnares U.S. Citizen; He’s Suing the

FBI and Homeland Security After Being Flagged as an Illegal Immigrant and

Held in Prison, L.A. TIMES, July 6, 2012, at 9 (describing a lawsuit filed by the

National Immigrant Justice Center in Chicago after a U.S. citizen was

incorrectly identified through the Secure Communities program as an

undocumented immigrant and held for two months in a maximum security

prison instead of the drug treatment program to which he had been sentenced). 244

See DANIEL KANSTROOM, AFTERMATH: DEPORTATION LAW AND THE NEW

AMERICAN DIASPORA 135–39 (2012). 245

A portion of the costs associated with detainers for undocumented

individuals with a certain number of prior convictions is covered by a

Department of Justice program called the State Criminal Alien Assistance

Program (SCAAP). SCAAP only covers about 25% of the relevant costs in most

cases. See Letter of Richard M. Stana, Director, Homeland Security and Justice

Issues, United States Governmental Accountability Office, to The Honorable

John N. Hostettler, Chairman, Subcommittee on Immigration, Border Security,

62 [DECEMBER 2012]


agree that non-citizen residents with substantial ties to the state should

be separated from their families and deported to countries they often

know little about.

As a matter of principle, if the federal government has the right

to preempt anti-immigrant rules, it should have a right to preempt

pro-immigrant policies too. Some might respond that the federal

government’s power to compel state and local action is

distinguishable from its power to preempt. The Tenth Amendment

operates as a significant limitation on federal authority over the

states, providing that “[t]he powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.”246

However,

as Arizona makes clear, immigration is just such a power, and

there is a lengthy historical record of the federal government

compelling or enlisting state action in the immigration arena.247

This might be enough in and of itself to distinguish cases that

prohibit the federal government from commandeering state and

local action in other contexts.248

On the other hand, the detainer

and Claims Committee on the Judiciary, House of Representatives, Apr. 7, 2005,

at 3, available at http://www.gao.gov/new.items/d05337r.pdf (last visited Aug.

18, 2012). 246

U.S. CONST. amend. X. 247

Statutes enacted by the first Congresses required state courts to record

applications for citizenship, transmit abstracts of citizenship applications and

other naturalization records to the Secretary of State, and register aliens seeking

naturalization and issue certificates of registry. Printz v. United States, 521 U.S.

898, 905–06 (1997). Late nineteenth century immigration law enlisted the

cooperation of state officials “to take charge of the local affairs of immigration

in the ports within such State, and to provide for the support and relief of such

immigrants therein landing as may fall into distress or need of public aid”; to

inspect arriving immigrants and exclude any person found to be a “convict,

lunatic, idiot,” or indigent; and to send convicts back to their country of origin

“without compensation.” Id. at 916 (quoting Act of August 3, 1882, ch. 376,

§§ 2, 4, 22 Stat. 214). 248

See id. at 933 (finding that provisions of the Brady gun law requiring local

officers to conduct background checks on prospective handgun purchasers

imposed an unconstitutional obligation on state officers to execute federal laws).



regulation does impose a financial obligation on local jails, without

clear statutory authority to do so in all cases.249

Ultimately, the question whether the federal detainer regulation

is valid is complicated. Yet the central point of Arizona—that

states and localities cannot enact their own immigration policies—

weighs against the efforts of localities to resist DHS detainers.

Federalism does not provide a principled basis for arguing both

that states cannot enact and enforce immigration laws and at the

same time that localities can resist harsh federal programs. For

that, something more is required—that non-citizens have rights of

their own. In fact, holding non-citizens based on a mere federal

statement that DHS is conducting an investigation into non-citizen

status ought to raise serious Fourth Amendment issues.250

However, the jurisprudence on non-citizens’ Fourth Amendment

rights has sometimes looked grim.251

The main point of this discussion is that if non-citizens have no

rights of their own, they might find themselves at the whim of the

executive, which may sometimes have their interests at heart, and

at others not.252

History is rife with shameful examples of federal

discrimination against non-citizens, from the Palmer raids to

249

See supra notes 236 and 239. 250

Because immigration judges make ultimate determinations as to

deportability, the initial decision to apprehend a non-citizen is merely

investigatory, and warrantless arrests for investigative purposes are at odds with

the Fourth Amendment. See Papachristou v. City of Jacksonville, 405 U.S. 156,

169 (1972) (“We allow our police to make arrests only on ‘probable cause’ . . . .

Arresting a person on suspicion, like arresting a person for investigation, is

foreign to our system.”). 251

See Part I.B.1. 252

During the Alien and Sedition Act debates, the Democratic-Republicans

argued in favor of non-citizen rights precisely because they were concerned

about the dangers to the constitutional order of having a large class of persons

living in this country at the pleasure of the executive. See NEUMAN, STRANGERS

TO THE CONSTITUTION, supra note 34, at 57.

64 [DECEMBER 2012]


Japanese internment.253

Of course, non-citizens can rely on other

rights surrogates to attack federal action, like administrative law

arguments. When they grant these claims, courts to some extent

tacitly acknowledge non-citizens’ rights. Yet, as we will see,

administrative law can be used against non-citizens as easily as it

can work in their favor.

B. The Flaws of Agency Skepticism

The premise of the APA—that agencies should act rationally—

seems sound. Yet anyone who has ever dealt with a bureaucracy

knows that much bureaucratic action has little to do with

substantive rationality. Administrative agencies promulgate a host

of formal procedural rules—from the ministerial requirements of

their forms to the deadlines for filing them—that lack any

substantive rationale. Moreover, even many substantive

bureaucratic rules are not created through an intentional process;

they evolve over time as different types of bureaucrats compete for

resources in a changing environment.254

Evolved agency rules are

subject to attack under the reasoned decision-making requirement

of the APA. However, not all evolved law is harmful to agency

constituents.

For example, the 212(c) waiver that the Court considered in

Judulang never would have existed at all for deportable non-

citizens if the Agency had not fitfully tried to help deportable non-

citizens in compelling cases.255

If the INS had stuck to the statutory

language, which applied on its face only to excludable non-

citizens, the 212(c) standard would not have been subject to APA

253

See DANIEL KANSTROOM, DEPORTATION NATION: OUTSIDERS IN AMERICAN

HISTORY 149–55, 208–14 (2007). 254

See ANTHONY DOWNS, INSIDE BUREAUCRACY 198–210 (1967). 255

The complicated evolution of the 212(c) standard is beyond the scope of

this Article. For a history of the waiver and its predecessor, the Seventh Proviso

of the Immigration Act of 1917, see Francis v. Immigration & Naturalization

Serv., 532 F.2d 268, 270–71 (2d Cir. 1976).



attack. The Agency embarked on the path of irrationality when it

allowed deportable non-citizens to seek “nunc pro tunc” 212(c)

relief in cases when they had previously left the United States.256

This and other exceptions that the agency carved out to the

statutory language compounded the situation that the Second

Circuit in Francis found unconstitutional. By the time of Francis,

the Board had already gerrymandered the statute so much in its

efforts to help non-citizens that it no longer had the statutory

language to fall back on as a justification for its disparate

treatment.

After the Second Circuit found that this policy violated equal

protection, the waiver again became broadly available to most

deportable non-citizens until 1996, when Congress replaced it with

“cancellation of removal,” a form of discretionary relief that is

available to both inadmissible and deportable non-citizens, but not

to persons with convictions considered “aggravated felonies.”257

Today 212(c) relief remains available to persons with aggravated

felonies only because the Court, in INS v. St. Cyr, found that it

would have been impermissibly retroactive for Congress to have

eliminated the waiver for persons who pled guilty to crimes in

reliance on its existence.258

The Board implemented the St. Cyr

decision with regulations,259

which it later interpreted to mean that

only non-citizens charged with a ground of deportability with

substantially similar language to a ground of inadmissibility could

apply for the waiver.260

It is true, as the Court said in Judulang, that the factors relevant

to this test bear no relationship to the question whether a non-

256

See Matter of Arias-Uribe, 13 I. & N. Dec. 696, 698 (1971); Matter of G.

A., 7 I. & N. Dec. 274, 276 (1956); Matter of L–, 1 I. & N. Dec. 1, 6 (1940). 257

See 8 U.S.C. § 1229B(a)(3). 258

533 U.S. 289, 321–26 (2001). 259

8 C.F.R. § 1212.3. 260

See Matter of Blake, 23 I. & N. Dec. 722, 728 (BIA 2005).

66 [DECEMBER 2012]


citizen deserves deportation.261

But the basic feature that made this

comparability test irrational is one that Congress created: the

formalistic distinction between “deportable” and “inadmissible”

non-citizens. This distinction has led to countless instances of

arbitrary discrimination, and the courts have approved most of

them.262

Moreover, this distinction is only one of many bizarre

aspects of immigration law, which is so full of mechanistic rules,

unexpected pitfalls and traps that courts have taken to repeatedly

calling it a “labyrinth.”263

The point is not that DHS and its

predecessor INS have been rational relative to Congress, but just

that their actions are no more irrational and in some cases, the

agency’s missteps were taken in good faith, in efforts to benefit

immigrants.

In the case of the 212(c) rules, the agency’s standard had

become so corrupted that it benefited non-citizens to strike it

down. But a more recent example of agency action better

demonstrates that sometimes the APA may not help non-citizens.

In August 2012, DHS announced that it would grant a two-year

deportation reprieve and confer work permission on the group of

immigrant youth who have come to be called “DREAMers.” DHS

has mandated that in order to be eligible for its new DACA

program, the non-citizen must have:

arrived in the United States under the age of sixteen;

261


The grounds of deportation and inadmissibility differ in subtle ways that

create inequitable results. For example, a person with a conviction for

possession of less than thirty grams of marijuana is not deportable, but is

inadmissible, meaning that if she never travels, she can continue to live in the

United States, but if she takes a trip abroad, she will be placed in removal

proceedings on her return. Compare 8 U.S.C. § 1182(a)(2)(C) (ground of

inadmissibility for controlled substances violations), with 8 U.S.C.

§ 1227(a)(2)(B)(i) (ground of deportation for controlled substance offenses). 263

See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011); Hernandez v.

Mukasey, 524 F.3d 1014, 1018 (9th Cir. 2008); Biwot v. Gonzales, 403 F.3d

1094, 1098 (9th Cir. 2005).



continuously resided in the United States for at least five

years preceding June 15, 2012, and have been present in the

United States on June 15, 2012;

currently be enrolled in school, graduated from high school,

have obtained a general education development certificate

(GED) or have been honorably discharged veterans of the

US Coast Guard or Armed Forces;

not been convicted of a felony offense, a significant

misdemeanor offense, multiple misdemeanor offenses, or

otherwise pose a threat to national security or public safety;

be at least fifteen years old;

and not be above the age of thirty.264

Some of these requirements raise questions. For example,

unauthorized immigrants are ineligible to serve in the Armed

Forces,265 making that provision seemingly inane. For that matter,

why should a fifteen-year-old be eligible to apply for relief under the

program, but not a fourteen-year-old? Perhaps DHS had a reason for

including the Armed Forces provision or limiting relief to persons

over the age of fifteen, but we have no idea what they were, because

there is no public record of its decision-making process. The agency

never gave formal notice of a proposed rulemaking nor invited public

comment. The agency’s decision to proceed without formal

rulemaking has already led to one APA lawsuit: Crane v. Napolitano,

264

See Memorandum from Janet Napolitano, Secretary of Homeland Security,

to David V. Aguilar, Acting Commissioner, U.S. Customs and Border

Protection; Alejandro Mayorkas, Director, U.S. Citizenship and Immigration

Services; and John Morton, Director, U.S. Immigration and Customs

Enforcement, p. 1 (June 15, 2012), available at

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-

individuals-who-came-to-us-as-children.pdf (last visited Oct. 21, 2012)

[hereinafter Napolitano Memo]. 265

See 10 U.S.C. § 504.

68 [DECEMBER 2012]


filed by a group of Immigration and Customs Enforcement (ICE)

agents and the state of Mississippi.266

Litigation against the DACA program will have to overcome

enormous jurisdictional hurdles.267 That being said, the principles set

out in Judulang do not weigh in favor of the DACA program.

Judulang seemingly adopted the relatively strict version of the APA

standard of reasoned decision-making set out in State Farm, a

standard that empowers courts to closely dissect agency decision-

making.268 Although DHS gave reasonable explanations for the

266

See Amended Complaint, Crane v. Napolitano, No. 3:12-CV-03247-O

(N.D. Tex. Oct. 10, 2012). 267

Much of the jurisdictional battle will likely center on whether the DACA

program is merely an exercise of DHS’s prosecutorial discretion to not deport

certain persons, or the conferral of a type of status on non-citizens without

Congress having conferred authority on the agency to do so. There are a host of

impediments to court review of agency prosecutorial discretion. See 5 U.S.C.

§ 701(a) (precluding APA review where a statute forecloses review or the

decision sought to be challenged is discretionary); 8 U.S.C. § 1252(a)(2)(B)

(precluding review of immigration matters subject to the discretion of the DHS

secretary); Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“an agency’s decision

not to prosecute or enforce, whether through civil or criminal process, is a

decision generally committed to an agency’s absolute discretion”). Cf. 8 U.S.C.

§ 1252(g) (precluding review of decisions to commence proceedings) (emphasis

added). There are also rigorous standing requirements under both Article III of

the Constitution and the APA. In order to meet Article III’s requirements, the

plaintiff must have suffered an “injury in fact” that is “(a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of the defendant; and (3) it is

likely, as opposed to merely speculative, that the injury will be redressed by a

favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180–81 (2000) (quoting Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992)). The litigant must also establish standing under the

APA, which authorizes review if there is “final agency action” and the injured

litigant is within the “‘zone of interests’” sought to be protected by the statutory

provision whose violation forms the legal basis for his complaint.” Lujan, 497

U.S. at 882. 268

Under State Farm, agency action can be struck down

if the agency has relied on factors which Congress has not

intended it to consider, entirely failed to consider an important



program,269 these explanations might not fare well under the probing

lens of State Farm.

Ultimately, the APA is a two-edged sword, which can be used

against immigrants just as easily as it can cut in their favor. A

“rational” deportation process, after all, is not necessarily the same

thing as a decent or fair one. Although non-citizens have lately fared

well with APA-type claims, the tables might turn, and the APA and

anti-regulatory sentiment might be used against programs benefitting

non-citizens just as they have served to invalidate liberal agency

policies in other contexts.270 Sometimes what will be needed to

protect non-citizens will not be an ostensibly value-neutral standard

focusing on reasoned decision-making, but one that looks more

broadly to substantive fairness—one, in other words, that looks like a

right.

V. WHY RIGHTS MATTER

There has been a robust debate in the legal academy

concerning the existence and meaning of rights. In the 1920s and

1930s, legal realists depicted rights as social constructs.271

Yet

aspect of the problem, offered an explanation for its decision that

runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or

the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). 269

See Napolitano Memo, supra note 264, at 1. 270

See Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness

Review, 75 U. CHI. L. REV. 761, 767 (2008) (finding that the political

commitments of judges significantly influence the operation of arbitrary and

capricious review in EPA and NLRB cases); Richard L. Revesz, Environmental

Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1738 (1997)

(finding that in industry challenges to EPA action, Republicans had a higher

reversal rate than Democrats and for environmental challenges, Democrats had a

higher reversal rate than Republicans in all the periods). 271

For a realist critique of property rights, see Robert L. Hale, Coercion and

Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470 (1923)

(contending that the market economy was the actual creator of property and

70 [DECEMBER 2012]


there was a powerful backlash to this work during and after World

War II,272

which seemed to demonstrate the importance of political

rights as a buffer against fascism. A similar backlash ensued when

Critical Legal Studies scholars argued in the 1980s that rights are

indeterminate and harmful legitimators of economic oppression.273

Critical Race Studies scholars eloquently rejoined that rights have

great instrumental value, noting their centrality to the historical

struggle of African Americans for equal treatment.274

The vigor of this debate underscores that the United States’

national identity has historically been linked to the question of

rights. It may be difficult to pinpoint exactly what a right is, but

denying the existence of rights strikes many as dangerous,

particularly those who have been historically relegated to the

margins of society. As Professor Patricia Williams points out, it is

easiest for those accustomed to privilege to dispense with rights.275

To a large extent, rights matter because of what they signify about

their holders: autonomy and membership.

entitlements, rather than being a neutral institution that reflected pre-existing

property rights); 272

See, e.g., Walter B. Kennedy, A Review of Legal Realism, 9 FORDHAM L.

REV. 362, 373 (1940) (“The fatal divorce of the actual from the ideal or the real

from the abstract is a penetrating defect of realism which has ended in this

unqualified rejection of rule by law.”). 273

For an explanation of the CLS critique of rights, see Tushnet, supra note 30,

at 1363–64 (arguing that rights are unstable, indeterminate, reifying, and

reactionary). For a response from the Critical Race Studies camp, see Kimberlé

Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and

Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988). 274

See Crenshaw, supra note 273, at 1356; PATRICIA J. WILLIAMS, THE

ALCHEMY OF RACE AND RIGHTS: DIARY OF A LAW PROFESSOR 165 (1991). 275

WILLIAMS, supra note 274, at 148.



A. Rights of Personhood

“All human beings are born free and equal in

dignity and rights.”276

At their most basic level, rights imply subjectivity and agency.

Thus, persons, not animals or things, have historically had rights.277

The classical liberal notion of rights as inherent in personhood is

something that heavily influenced the drafters of the United States

Constitution, who believed, according to Lockeian social contract

theory, that persons have natural rights, and government has only

those rights that persons relinquish to it for their mutual protection.278

John Stuart Mill believed that if government were granted too many

powers, it would trample upon the human ingenuity that is essential

for the progress of civilization.279 The drafters of the Constitution

took this danger seriously; hence, the Bill of Rights is rather heavy on

“negative rights”—the right to be free from interference in one’s

personal dealings, provided that one is not infringing on the rights of

others to do the same.280

In the Kantian sense of rights, rights holders are entitled to be

treated as an ends in and of themselves, rather than a means for

accomplishing other persons’ ends, i.e., as things.281 For both Kant

and Hegel, freedom is expressed through alienation, through persons’

276

Universal Declaration of Human Rights, G.A. res 271A(III), U.N. Doc.

A/810 at 71 (1948), at art. 1. 277

For a philosophical defense of the inalienability of rights as to persons and

not things, see GEORG W. F. HEGEL, HEGEL’S PHILOSOPHY OF RIGHT, section 66

(T.M. Knox, trans., New York: Oxford University Press, 1967) (1821). 278

JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, Ch. 8, Sec. 95. For a

modern articulation of natural rights theory, see ROBERT NOZICK, ANARCHY,

STATE, AND UTOPIA ix (1974). 279

JOHN STUART MILL, ON LIBERTY, Ch. 4 (1869). 280

For a description of the distinction between positive and negative rights, see

THOMAS HALPER, POSITIVE RIGHTS IN A REPUBLIC OF TALK: A SURVEY AND A

CRITIQUE 14–20 (2003). 281

IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS: ON A

SUPPOSED RIGHT TO LIE BECAUSE OF PHILANTHROPIC CONCERNS 40–43 (1993).

72 [DECEMBER 2012]


exercising their will over things.282 Similarly, Locke believed that

property—the ability to take and own things—was one of the three

natural rights.283 One view of rights, then, is that they live in the

sometimes-contested territory between persons and things.284

The classical liberal notion of rights of personhood appears to

have always been central to the American political system. The

founders held strongly to the liberal ideas of Locke and Mill, who

believed that persons were autonomous agents with natural rights,

who should retain a sphere of individual liberty free from

governmental restraint.285 Many of the “negative” rights in the Bill of

Rights—free speech, freedom from unreasonable searches and

seizures, and due process—seem to stem from this notion of rights as

inalienable expressions of personhood, emanating from that residual

sphere of autonomy untouched by the social contract.

The founders likely viewed these as natural rights, which is

perhaps why they used the terms “people” and “person” instead of

“citizen” when enumerating them.286 Pointing to the universalistic

language of the text, Alexander Bickel argued that the American

Constitution first and foremost “bestow[s] rights on people and

persons, and [holds] itself out as bound by certain standards of

conduct in its relations with people and persons, not with some legal

construct called citizen.”287

282

See MARGARET JANE RADIN, CONTESTED COMMODITIES 35 (1996). 283

LOCKE, supra note 278, at Ch. 2, Sec. 6. 284

For an argument for conferring rights on natural objects, see Christopher

Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects,

S. CAL. L. REV. 450, 455 (1972). 285

See, e.g., THE FEDERALIST, No. 2, at 8 (John Jay) (1888) (“Nothing is more

certain than the indispensable necessity of government, and it is equally

undeniable, that whenever and however it is instituted, the people must cede to it

some of their natural rights in order to vest it with requisite powers.”). 286

See U.S. CONST. amends. I, II, IV, V, X, and XIV. 287

ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 36 (1975). For a

counterargument contending that the founders cared a great deal about

citizenship, see Earl M. Maltz, Citizenship and the Constitution: A History and



B. Membership Rights

“Citizenship is man’s basic right for it is nothing less than the right to have rights.”288

Rights also connote membership—“rights imply a respect that

places one in the referential range of self and others, that elevates

one’s status from human body to social being.”289 Communitarian

theorists urge that individual rights cannot be understood outside the

context of community—that rights are constituted in the context of

belonging.290 From at least the time of ancient Rome, rights have both

signified and stemmed from membership.291 Today, membership

rights from country clubs to advanced economies are desired and

contested, so much so that Michael Walzer has observed that “[t]he

primary good that we distribute to one another is membership in some

human community.”292

If eighteenth century social contract theory was a source for rights

of personhood, it also gave rise to influential proto-communitarian

theories of rights. In contrast to Locke, Jean Jacques Rousseau did not

believe that the origin of rights was in nature; he located it in “the

social order.”293 Although Locke believed that free persons retained a

sphere of natural rights free from governmental interference,

Rousseau’s social compact entails complete alienation of each

individual’s rights to the collective whole, creating a new sphere of

Critique of the Supreme Court's Alienage Jurisprudence, 28 ARIZ. ST. L.J. 1135,

1136 (1996). 288

Perez v. Brownell, 356 U.S. 44, 64 (1957). 289

WILLIAMS, supra note 274, at 153. 290

See David Morrice, The Liberal-Communitarian Debate in Contemporary

Political Philosophy and Its Significance for International Relations, 26 REV.

INT’L STUD. 235–36 (2000). 291

J. G. A. Pocock, The Ideal of Citizenship Since Classical Times, in THE

CITIZENSHIP DEBATES: A READER 38 (1998). 292

MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND

EQUALITY 31 (1983). 293

JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT, Bk 1, Ch. 1; Bk. 1, Ch.

9.

74 [DECEMBER 2012]


collective rights, owned and expressed by “the people,” each of whom

individually were “citizens.”294 Rights for Rousseau were by

definition membership rights—arising out of social, reciprocal

obligations, and expressed through the political process.

It is exactly because rights connote membership that they matter

for many at the margins of society. As Kenneth Karst remarked, “The

rhetoric of rights is vital to a cultural minority in defending the values

of belonging, whether the concern be for group solidarity or for

integration into the larger society.”295 Yet this empowering feature of

membership rights is exactly what makes them dangerous. Just as

rights of personhood are partly framed by a binary relationship of

persons to things, members have rights of membership via their

relationship with non-members. Rights in this sense are often

perceived as a zero-sum game; the extension of rights to new

members might be considered a dilution just as much as an

expansion.296

C. Non-persons and Non-members

Communitarians and liberals may not agree about the source of

rights, but both perspectives hold that rights are valuable. Rights

holders are persons who command respect in their relationship

with other persons and the state. They are also members of “the

People” who may lay claim to membership rights from voting to

public benefits.

294

Id. at Bk.1, Ch. 6. 295

Kenneth Karst, Paths to Belonging: The Constitution and Cultural Identity,

64 N. CAR. L. REV. 303, 340 (1985). 296

See, e.g., SCHUCK, supra note 24, at 169, 173 (arguing that the extension of

due process rights to non-citizens has devalued citizenship). For a critique of

Schuck’s communitarian perspective, see Bosniak, Exclusion and Membership,

supra note 43, at 1000–06 or T. Alexander Aleinikoff, Citizens, Aliens,

Membership and the Constitution, 7 CONSTITUTIONAL COMMENTARY 9, 28–32

(1990).



The shift from the Burger Court’s equal protection

jurisprudence to the contemporary Court’s focus on federalism and

agency skepticism represents a net loss of prestige for non-citizens.

Within the panoply of American rights, few resonate more with the

public than the right to equal protection, which was enacted to

assure that freed slaves were granted full societal membership

rights after the Civil War.297

The clause has since been interpreted

as a means for overcoming the shortfalls of representational

democracy by protecting “discrete and insular” minorities.298

But

rather than confirming the membership status of non-citizens,

cases like Arizona uphold the rights of the federal government over

immigrants. And administrative law is at least as focused on

assuring agency accountability to the democratic majority as it is

on protecting the rights of persons caught up in agency

processes.299

Preemption analysis and the APA are similar in the sense that

immigrants are incidental beneficiaries rather than subjects in their

own right. Preemption affirms the power of the federal government

over immigrants; the APA affirms the power of courts over

agencies; in both cases, immigrants are subordinate.

297

See JACOBUS TENBROEK, EQUAL UNDER LAW 202 (1965). 298

See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL

REVIEW 75–76 (construing United States v. Carolene Products Company, 304

U.S. 144, 152 n.4 (1938)). 299

See Elena Kagan, supra note 222, at 2331 (“All models of administration

must address two core issues: how to make administration accountable to the

public and how to make administration efficient or otherwise effective.”);

Matthew D. McCubbins et al., Administrative Procedures as Instruments of

Political Control, 3 J.L. ECON. & ORG. 243, 246 (1987) (arguing that the

purpose of administrative law is to help elected politicians retain control of

policymaking); Eric A. Posner, Controlling Agencies with Cost-Benefit

Analysis: A Positive Political Theory Perspective, 68 U. CHI. L. REV. 1137,

1141 (2001) (contending that the purpose of cost-benefit analysis is to ensure

that elected officials retain power over agency regulation).

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Rights are not only important for the prestige and protection of

immigrants; they also matter for society. Both liberals and

communitarians agree, albeit for different reasons, that a just

society requires a more or less equal distribution of rights. For

example, John Rawls argued that liberty is a social value, which,

like economic opportunity, should be distributed equally unless an

unequal distribution is to everyone’s benefit.300

Based on Rawls’s

social contract theory, Professor Ronald Dworkin argues that all

persons have a “right to equal concern and respect.”301

By this he

means not that all persons have a right to equal treatment, but that

all persons have a right to be treated as an equal.302

Thus, more

liberties may be apportioned to some persons than others only if

the principle of allocation does not treat any person as worthy of

less respect than others.

One might argue that sovereignty is a neutral principle that

rational non-citizens themselves might choose as a reason for

unequal treatment in cases where it is necessary to protect national

sovereignty. Thus, despite Rawls’ and Dworkin’s strong defense of

equality, a liberal argument might be made for restricting some

non-citizen rights, likely those that seem most obviously related to

membership, such as voting and certain types of governmental

employment. But the sovereignty argument weakens when core

rights of personhood are at issue.

300

JOHN RAWLS, A THEORY OF JUSTICE 54 (2000). Rawls elaborates that

“liberty can be restricted only for the sake of liberty itself.” Id. at 214. By this he

means not that greater liberty for some might justify a lesser liberty for others,

but rather that those with the lesser liberty must prefer that status quo because

they are compensated in some way for it, in the form of some other advantage.

Id. at 218. Thus, he assumes that slavery will almost never be just, unless it is in

the context of an evolving society that formerly subjected the persons who will

be slaves to some worse penalty, such as death, perhaps because they are

prisoners of war. Id. 301

DWORKIN, supra note 30, at 273. 302

Id.



This liberal argument for restricting rights dovetails with

communitarian arguments. One of the most prominent

communitarian thinkers, Michael Walzer, has written in favor of

rigid control at the border, because he believes that communities

must be allowed to define themselves.303

But he is clear that this

form of control should not intrude on the life of the interior:

The determination of aliens and guests by an

exclusive band of citizens (or of slaves by masters,

or women by men, or blacks by whites, or

conquered peoples by their conquerors) is not

communal freedom but oppression. The citizens are

free, of course, to set up a club, make membership

as exclusive as they like, write a constitution, and

govern one another. But they can’t claim territorial

jurisdiction and rule over the people with whom

they share the territory. To do this is to act outside

their sphere, beyond their rights. It is a form of

tyranny. Indeed, the rule of citizens over non-

citizens, of members over strangers, is probably the

most common form of tyranny in human history.”304

Walzer’s concern with the mistreatment of non-citizens stems

from his ideas about equality. He argues in favor of “complex

equality,” meaning that persons should be free to achieve monopoly,

or supremacy within a particular “sphere,” like politics or wealth, but

no monopoly should extend across spheres. Thus, wealth should not

allow somebody to buy political power, and a nation’s authority over

the border should not entitle it to deny non-citizens rights unrelated to

the national project of self-definition.

In fact, some communitarians have argued that weakening non-

citizens’ rights can actually undermine community. As Professor

303

MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND

EQUALITY 55–61 (1983). 304

Id. at 62.

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Linda Bosniak has pointed out, the exploitability of undocumented

workers makes them attractive to some employers, thus creating

employment opportunities that induce new non-citizens to enter

illegally.305

Although there are many aspects to the intractable

cycle of unauthorized immigration, one solution is to assure that

unauthorized migrants’ rights are protected.

At the end of the day, rights protect. The Critical Race Studies

scholars persuasively argued that rights are political resources and

signifiers of worth.306

Liberals and communitarians might debate

the source of rights—personhood or membership—but from a

functional perspective, rights signal both, and in a society that

values both autonomy and community, both are essential.

CONCLUSION

The Equal Protection Clause was a favorite tool of the Burger

Court, which relied on it to strike down legislation restricting

immigrants’ access to state services in all cases except those

implicating a political function. This exception is counter-textual,

since the provision refers to “persons,” but in the political function

cases, the Court seemed to read “persons” as “the People.” Despite

its universal language, U.S. courts have never interpreted the Equal

Protection Clause as a mandate that all persons be treated equally

in all circumstances. Courts have always looked at the party being

discriminated against, the issues at stake, and the justification for

the disparate treatment. It is perhaps inevitable that principles of

membership will filter into this analysis. Indeed, the history of the

Fourteenth Amendment shows that it has always been a right that

is deeply embedded in notions of membership. It was passed to

remedy the subordination of slaves; it has been the gateway of

women, and racial and sexual minorities, into the mainstream of

American political life. It is a means of safeguarding “discrete and

305

Bosniak, Exclusion and Membership, supra note 43 at 1004. 306

Supra note 275.



insular minorities” from the ominous side of democratic politics:

majoritarian tyranny.

In this context, the Burger Court’s many decisions upholding

immigrant equal protection rights sent a powerful signal that non-

citizens were members. In the years since, the Court has continued

to issue important opinions in non-citizens’ favor. Notably, the

Rehnquist Court found that the government cannot indefinitely

detain non-citizens, and the Roberts Court has held that they are

entitled under the Sixth Amendment to attorney advice concerning

the deportation consequences of a criminal conviction. The

contemporary Court remains committed in criminal and quasi-

criminal matters to non-citizens’ core rights of personhood. But it

has not affirmed what the Burger Court often held—that non-

citizens are entitled to equal protection when the government

discriminates against them in allocating the benefits of

membership.

Instead, the Court has struck down discriminatory state

legislation based on the logic of preemption, and has reined in

agency action through the APA. Agency skepticism and federalism

are substitutes for equal protection with very different

implications. Federalism is about power—the power of the federal

government over states, and, in the immigration context, over non-

citizens. The APA is a tool for asserting judicial power over

agencies, and, by assuring that agencies do not exceed their

legislative mandate, the power of the democratic majority over

unelected bureaucrats. Unlike the Equal Protection Clause, which

is a means for safeguarding the rights of the few, the APA is in

large part about agency accountability to the majority.

The shift away from immigrant equal protection may be part of

a larger trend away from recognizing non-citizens as members. In

the nineteenth and early twentieth century, European immigrants

were on a presumed pathway to citizenship, and enjoyed much

broader political participation rights than today. The racialized

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distinctions of the nineteenth and early twentieth century have now

given way to a complex hierarchy of immigration statuses, with

LPRs on the top and undocumented immigrants at the bottom. LPR

status is difficult to obtain, and although LPRs have greater

membership rights than other immigrants, they have less than the

intending citizens of an earlier era. Moreover, as the boundary for

members has narrowed, the scope of membership rights has

increased. Rights like work and free speech were once assumed to

belong to everyone; today they are sometimes restricted to LPRs or

other privileged immigrants.

The dissipating membership rights of immigrants means that

they must rely more on the exercise of federal or state discretion in

their favor. If non-citizens have to rely on the federal government

or states to protect them, they may be in danger. The APA could be

used by anti-immigrant organizations to attack federal programs

that benefit non-citizens, like the DACA initiative, just as industry

groups have successfully challenged environmental legislation.

Conversely, states that have more generous policies toward non-

citizens than the federal government could face federal preemption

challenges that are the mirror image of Arizona.

History teaches that majoritarian tyranny is a real threat to

immigrants, who are poorly protected by the political process. The

federal government’s immigration policies will shift as

administrations and priorities change, and the beneficent policies

of today may give way to draconian ones tomorrow. Meanwhile,

Congress seems to lack the will to create a comprehensive and

coherent immigration law. Congressional inertia is feeding public

frustration with the immigration system, meaning that states and

localities are increasingly taking matters into their own hands,

passing laws like Arizona’s Senate Bill 1070. Arizona v. United

States will not spell the end to this conflict, and if the only

boundaries to it are the principles of federalism, states will not lose

every battle.



The Equal Protection Clause is an important shield against

majoritarian abuse, yet for non-citizens, it seems less reliable today

than in times past. This is not to say that the Court fails entirely to

protect non-citizens’ rights. Cases like Padilla and Zadvydas

uphold important procedural rights for non-citizens facing

deportation. Even Arizona recognizes that the prolonged detention

of non-citizens as part of an investigation into their status could be

constitutionally problematic. For that matter, Judulang and the

asylum jurisprudence of Judge Posner could be read as being about

more than just agency rationality; they might also be invoked for a

principle of procedural fairness that is light years beyond the level

of due process that the early Court recognized in cases like

Yamataya.

If there is a direction that can be intuited from the Court’s

circuitous immigrant rights jurisprudence, it seems to be towards

procedural due process and away from membership rights. The

Court respects core rights of personhood when non-citizens are on

the verge of serious harm—indefinite detention, deportation based

on ineffective assistance of counsel, or a fundamentally unfair

hearing. Upholding basic procedural rights within the context of a

sometimes Kafkaesque deportation process is an important role for

a Court. But this is rights protection at the eleventh hour—when

non-citizens are already halfway out the door.

Immigrants have always been liminal figures in American

constitutionalism: persons, for purposes of core due process and

(most) criminal procedural rights, but only partly members of “the

People” when it comes to public benefits or political participation.

The debate over how to allocate membership rights to immigrants

is a difficult one, which partly turns on their characterization. At

different times in U.S. history, non-citizens have been putative,

transitional, potential or non- members. Sometimes they have been

“guests,” but rarely welcome ones. All too often, they have been

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called invaders, as Justice Scalia described unauthorized migrants

in Arizona.307

In this climate, perhaps the best that can be hoped is for

immigrants to invoke individual rights proxies like federalism or

agency skepticism. But history, even U.S. legal history, is full of

sudden change. The contemporary Supreme Court may prioritize

structural rights based on federalism over individual rights and

administrative law claims over constitutional ones. But these

currently prevailing doctrines evolved from a very different state

of affairs—one in which immigrants succeeded to a remarkable

extent in pressing claims as equals.

307

Arizona v. United States, 132 S. Ct. 2492, 2522 (2012) (Scalia, J.,

dissenting). It is worth remembering that the last time the Supreme Court used

this rhetoric in an immigration case was Chae Chan Ping, where the Court

upheld the discriminatory and shameful practice of Chinese exclusion. Chae

Chan Ping v. United States, 130 U.S. 581, 595 (1889).